Australian Torts Law

Fourth Edition

Amanda Stickley
LLB, Grad Dip Leg Prac, LLM, Grad Cert Ed (Higher Ed) (QUT)
Associate Professor, Faculty of Law Queensland University of Technology
Senior Fellow, Higher Education Academy (UK)

LexisNexis Butterworths
Australia
2016
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National Library of Australia Cataloguing-in-Publication entry

Author: Stickley, Amanda.

Title: Australian Torts Law.
Edition: 4th edition.
ISBN: 9780409342048 (pbk).
9780409342062 (ebk).
Notes: Includes index.
Subjects: Torts — Australia — Textbooks.
Dewey Number: 346.9403

© 2016 Reed International Books Australia Pty Limited trading as

LexisNexis.
First edition 2005. Second edition 2009 (reprinted 2010, 2011 and 2012).
Third edition 2013 (reprinted 2014 and 2015).
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 Preface

The law of torts covers such a wide range of actions, that when undertaking
research and writing, it looms as a very daunting task. However, it also allows
research into areas that you rarely consider, and given the variety and
constant change, means that it is always interesting.
This is the fourth edition of Australian Torts Law, and it follows the same
format as the previous edition, attempting to examine the law as it currently
operates and provide some historical context. As with previous editions, the
aim is to provide a comprehensive coverage of the law of torts in a way that
students may appreciate.
The action of negligence continues to dominate the monograph, as it does
in all torts texts, and with the passing of nearly 15 years since the civil liability
legislation was introduced, the case law continues to grow as courts grapple
with the subtle differences and issues of interpretation. With the ease of
access to unreported judgments and the latest of cases online, it is difficult to
know when enough is enough, but hopefully a sufficient range of cases have
been included to demonstrate the points of law without going overboard.
Extracts of legislation have been included where possible — always an issue
when there are usually differences between the eight Australian jurisdictions.
Teaching torts law to first-year students at the Queensland University of
Technology remains the favourite part of my job, and I thank my students for
their feedback over the years. My thanks also go to Jocelyn Holmes at
LexisNexis Butterworths for her support and encouragement. My daughter
Jaimie is now four years older since the last edition and assures me that she
needs no acknowledgement this time.
 The law is that as generally stated at April 2016, with minor additions
during the editing of the book.
Amanda Stickley
 Table of Cases

References are to paragraph numbers

A
A v Hoare [2008] 1 AC 844 …. 14.43
— v New South Wales (2007) 230 CLR 500; 233 ALR 584 …. 1.9, 7.11, 7.13, 7.16, 7.17
A (Children) (Conjoined Twins: Surgical Separation), Re [2000] 4 All ER 961 …. 6.44
A, DC v Prince Alfred College Inc [2015] SASCFC 161 …. 20.46
A G Spalding & Bros v A W Gamage Ltd (1915) 84 LJ Ch 449 …. 24.6, 24.14, 24.30
— v — (1918) 35 RPC 101 …. 24.6, 24.14, 24.30
ABN AMRO Bank NV v Bathurst Regional Council (2014) 224 FCR 1; 309 ALR 445 …. 19.22, 19.28,
19.31, 19.45
Abraham bht Abraham v St Mark’s Orthodox Coptic College [2006] NSWSC 1107 …. 9.72
AC Billings & Sons Ltd v Riden [1958] AC 240 …. 9.21
Ace Insurance Ltd v Trifunovski (2011) 284 ALR 489 …. 20.9
ACI Metal Stamping & Spinning Pty Ltd v Boczulik (1964) 110 CLR 372 …. 9.38
ACN 087528774 Pty Ltd (formerly Connex Trains Melbourne Pty Ltd) v Chetcuti (2008) 21 VR 559 ….
3.27, 3.31
AD & SM McLean Pty Ltd v Meech (2005) 13 VR 241 …. 20.71
Adam v Ward [1917] AC 309; [1916–17] All ER Rep 157 …. 22.29, 23.33, 23.36, 23.39, 23.40, 23.46,
23.50
Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 120 …. 15.16, 15.33
— v Shire of Taringa [1927] QSR 163 …. 25.70
— v Vesco Nominees Pty Ltd [2004] QDC 305 …. 14.9
Adamson v Jarvis (1827) 4 Bing 66; 130 ER 693 …. 21.15
— v Motor Vehicle Insurance Trust (1957) 58 WALR 56 …. 1.27, 11.13
Addie v Dumbreck [1929] AC 358 …. 9.9
Addis v Crocker [1961] QB 11 …. 23.28
Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; 260 ALR 628 …. 9.24, 11.42, 12.22, 12.33, 12.34,
12.41
Adelaide Chemical Fertiliser Co Ltd v Carlyle (1940) 64 CLR 514 …. 9.122
Admiralski v Stehbens [1960] Qd R 510 …. 15.121, 15.123
Admiralty Commissioners v Owners of SS Amerika [1917] AC 38 …. 17.5
— v SS Valeria [1922] AC 242 …. 15.31
— v Susquehanna (Owners) [1926] AC 655 …. 5.93
Agar v Hyde (2000) 201 CLR 552; 173 ALR 665 …. 10.139, 13.66
Ahern v R (1988) 165 CLR 87; 80 ALR 161 …. 24.63
Ahmedi v Ahmedi (1991) 23 NSWLR 288 …. 15.75
Aircraft Technicians of Australia Pty Ltd v St Clair [2011] QCA 188 …. 15.72, 20.52
Airedale NHS Trust v Bland [1993] AC 789 …. 6.25
Airworks (New Zealand) Ltd v Vertical Flight Management Ltd [1999] 1 NZLR 641 …. 20.24
Aitken Agencies Ltd v Richardson [1967] NZLR 65 …. 5.50
Aktas v Westpac Banking Corporation Ltd (2010) 241 CLR 79; 268 ALR 409 …. 22.60, 23.33, 23.44
Alameddine v Glenworth Valley Horse Riding (2015) 324 ALR 355 …. 13.70
Albrecht v Patterson (1886) 12 VLR 597 …. 22.15, 22.16
Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 …. 9.101, 20.13, 20.68
Alcan Give Pty Ltd v Zabic (2015) 325 ALR 1 …. 12.1
Alcoa of Australia Ltd v Apache Energy Ltd [2012] WASC 209 …. 18.6, 18.14, 18.16
Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 …. 10.57
Aldersea v Public Transport Corporation (2001) 3 VR 499 …. 19.88
Alderslade v Hendon Laundry Ltd [1945] 1 All ER 244 …. 13.104
Aldred v Benton (1610) 9 Co Rep 57; 77 ER 816 …. 25.25
Alexander v Mayor and Corporation of Sydney (1861) 1 SCR (NSW) App 26 …. 25.92
— v North Eastern Railway Co (1865) 6 B & S 340; 122 ER 1221 …. 23.6
— v Perpetual Trustees WA Ltd (2003) 216 CLR 109; (2004) 204 ALR 417 …. 21.17
Alford v Magee (1952) 85 CLR 437 …. 13.3
Ali v Nationwide News Pty Ltd [2008] NSWCA 183 …. 23.118, 23.139
Al-Kandari v J R Brown & Co [1988] QB 665 …. 9.104
Allen v Chadwick (2014) 68 MVR 82 …. 13.45
— v — (2015) 326 ALR 505 …. 13.29, 13.45
— v Flood [1898] AC 1 …. 24.54, 24.60, 24.81
— v Gulf Oil Refining Ltd [1981] AC 1001 …. 6.49, 25.56, 25.57, 25.101
— v Wright (1838) 8 C & P 522; 173 ER 602 …. 3.70
Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568; 215 ALR 385 …. 12.31
Allsop v Allsop (1860) 5 H & N 534; 157 ER 1292 …. 22.15
Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (1995) 130 ALR 469 ….
24.46, 24.48
Almeroth v W E Chivers & Sons Ltd [1948] 1 All ER 53 …. 25.59
Amaca Pty Ltd v Ellis (2010) 240 CLR 111; 263 ALR 576 …. 12.50
— v King (2011) 35 VR 280 …. 15.152
— v New South Wales (2003) 199 ALR 596; 77 ALJR 1509 …. 21.17, 21.23
— v — (2004) Aust Torts Reports ¶81-749 …. 10.123, 10.128
Amaca Pty Ltd (under NSW administered winding up) v Booth; Amaba Pty Ltd (under NSW
administered winding up) v Booth (2011) 283 ALR 461; 86 ALJR 172 …. 12.48, 12.49
Amadio Pty Ltd v Henderson (1998) 81 FCR 149 …. 9.109
Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 …. 22.50, 22.54
Amess v Hanlon (1873) 4 AJR 90 …. 6.5
AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395 …. 24.89,
24.92, 24.99
Amstad v Brisbane City Council & Ward (No 1) [1968] Qd R 334 …. 6.49
Anchor Products Ltd v Hedges (1966) 115 CLR 493 …. 11.102, 11.105
Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; 206 ALR 387 …. 9.47, 18.22, 18.36
Andary v Burford (1994) Aust Torts Reports ¶81-302 …. 15.21
Anderson v Commonwealth (1932) 47 CLR 50 …. 15.2
— v Enfield City Corporation (1983) 34 SASR 472 …. 9.122, 11.78
— v Gorrie [1895] 1 QB 668 …. 6.55
— v Smith (1990) 101 FLR 34 …. 9.79
Anderson Group Pty Ltd v Tynan Motors Pty Ltd (2006) 65 NSWLR 400; [2006] NSWCA 22 …. 5.11
Andreae v Selfridge & Co Ltd [1938] Ch 1 …. 25.46
Andrewartha v Andrewartha (1987) 44 SASR 1 …. 17.18
Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 …. 23.130
Angel v Hawkesbury City Council (2008) Aust Torts Reports ¶81-955 …. 10.150, 11.63, 13.93
Angus v Clifford [1891] 2 Ch 449 …. 19.73
Anikin v Sierra (2004) 211 ALR 621; 79 ALJR 452 …. 9.60
Animal Liberation (Vic) Inc v Gasser [1991] 1 VR 51 …. 25.47
Anns v London Borough of Merton [1978] AC 728 …. 10.9, 10.10, 10.16, 10.33
Anonymous (1535) YB 27 H VIII f 27 …. 25.94
Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637;
(1989) 95 ALR 211 …. 24.2, 24.5, 24.56, 24.69, 24.70, 24.82
Archer v Brown [1985] QB 401 …. 19.84, 19.89
Argent Pty Ltd v Huxley [1971] Qd R 331 …. 17.4
Argentine, The (1889) 14 App Cas 519 …. 15.49
Armory v Delamirie (1722) 1 Stra 505; 93 ER 664 …. 5.38, 5.93, 6.45
Armstrong v Sheppard & Short Ltd [1959] 2 QB 384 …. 4.68
— v Strain [1952] 1 KB 232 …. 19.77, 20.55
Arthur J S Hall & Co (a firm) v Simons [2002] 1 AC 615; [2000] 3 All ER 673 …. 9.113, 9.114
Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 …. 15.54, 15.87, 15.152
AS v Minister for Immigration and Border Protection [2014] VSC 593 …. 9.84
Ascic v Westel Cooperative Ltd (1992) Aust Torts Reports ¶81-159 …. 11.79, 15.79
Ashby v Tolhurst [1937] 2 KB 242 …. 6.46
— v White (1704) 14 St Tr 695; 92 ER 710 …. 18.51
Associated Midland Corporation Ltd v Bank of New South Wales [1983] 1 NSWLR 533 …. 5.88
Associated Newspapers plc v Insert Media Ltd [1991] 1 WLR 571 …. 24.33
Astley v Austrust Ltd (1999) 197 CLR 1; 161 ALR 155 …. 1.29, 9.91, 13.6
Atkinson v Newcastle and Gateshead Waterworks Co (1877) LR 2 Ex D 441 …. 18.10, 18.13
Atlas Tiles Ltd v Briers (1978) 144 CLR 202; 21 ALR 129 …. 15.68, 15.150
Attia v British Gas plc [1988] QB 304 …. 10.41
Attorney-General v Great Cobar Copper Mining Co (1900) 21 NSWR 351 …. 4.18
— v Nottingham Corporation [1904] 1 Ch 673 …. 15.9
— v PYA Quarries Ltd [1957] 2 QB 169 …. 25.78, 25.85, 25.86, 25.87, 25.93
— v Wilson & Horton Ltd [1973] 2 NZLR 238 …. 17.7, 17.8
Attorney-General (NSW) v Perpetual Trustee Co Ltd (1952) 85 CLR 237 …. 17.21
— v — [1955] AC 457 …. 17.4
Attorney-General; Ex rel Pratt v Brisbane City Council [1988] 1 Qd R 346 …. 25.79
.au Domain Administration Ltd v Domain Names Australia Pty Ltd (2004) 207 ALR 521; 61 IPR 81;
[2004] FCA 424 …. 24.35, 24.36
Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 331 ALR 1 …. 9.115
Aussie Traveller Pty Ltd v Marklea Pty Ltd [1998] 1 Qd R 1 …. 25.13
Austin v Mirror Newspapers Ltd [1986] AC 299; (1985) 63 ALR 149 …. 23.83
Austral Bronze Co Pty Ltd v Ajaka (1970) 44 ALJR 155 …. 18.32
Austral Pacific Group Ltd (in liq) v Airservices Australia (2000) 203 CLR 136; 173 ALR 619 …. 21.19
Australia and New Zealand Banking Group Ltd v Hunter BNZ Finance Ltd [1991] 2 VR 407 …. 5.75,
5.78
Australian Broadcasting Corp v Chatterton (1986) 46 SASR 1 …. 23.20
— v Comalco Ltd (1986) 68 ALR 259 …. 23.83, 23.125, 23.130
— v Hanson [1998] QCA 306 …. 22.69
— v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; 185 ALR 1 …. 1.12, 7.24, 7.25
— v O’Neill (2006) 227 CLR 57; 229 ALR 457 …. 15.15, 23.71, 23.105, 23.108, 23.110
Australian Capital Territory Schools Authority v El Sheik (2000) Aust Torts Reports ¶81-577 …. 9.71
Australian Competition and Consumer Commission v Channel Seven Brisbane Pty Ltd (2009) 239 CLR
305; 255 ALR 1 …. 22.98
— v Chen (2003) 201 ALR 40 …. 22.96
Australian Consolidated Press Ltd v Uren [1969] 1 AC 590 …. 15.19
Australian Consolidated Press Pty Ltd v Ettingshausen (NSWCA, Gleeson CJ, Kirby P and Clarke JA,
13 October 1993, unreported) …. 23.124
Australian Energy Ltd v Lennard Oil NL [1986] 2 Qd R 216 …. 9.103
Australian Guarantee Corporation Ltd v State Bank of Victoria Commissioners [1989] VR 617 …. 6.63
Australian Iron & Steel Ltd v Greenwood (1962) 107 CLR 308 …. 23.128
— v Krstevski (1973) 128 CLR 666; 2 ALR 45 …. 11.60
Australian National Airways Ltd v Phillips [1953] SASR 278 …. 3.18
Australian Newspaper Co Ltd v Bennett [1894] AC 284 …. 22.63
Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700 …. 5.45
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; 69 ALR 615 …. 9.10, 9.12
Australian Wool Innovation Pty Ltd v Newkirk (2005) ATPR ¶42-053 …. 24.62
Australian Woollen Mills Ltd v FS Walton & Co Ltd (1937) 58 CLR 641 …. 24.14
Awaroa Holdings Ltd v Commercial Securities and Finance Ltd [1976] 1 NZLR 19 …. 19.5
Axiak v Ingram [2011] NSWSC 1447 …. 13.19
Azzopardi v State Transport Authority (Rail Division) (1982) 30 SASR 434 …. 13.19

B
B (Adult: Refusal of Medical Treatment), Re [2002] 2 All ER 449 …. 6.25
B M Auto Sales Pty Ltd v Budget Rent a Car System Pty Ltd (1976) 12 ALR 363 …. 24.31
Badenach v Calvert (2016) 90 ALJR 610; 331 ALR 48 …. 10.99, 10.105
Bader v Jelic [2011] NSWCA 255 …. 11.68
Bailiffs of Dunwich v Sterry (1831) 1 B & Ad 831; 109 ER 995 …. 5.8
Bain v Altoft [1967] Qd R 32 …. 6.9
Baker v Bolton (1808) 1 Camp 493; 170 ER 1033 …. 16.1
— v Dalgleish Steam Shipping Co [1922] 1 KB 361 …. 16.23
— v MacKenzie (2015) 72 MVR 421 …. 11.31
— v Police [1997] 2 NZLR 467 …. 4.11
— v Willoughby [1970] AC 467 …. 12.52
Baker’s Creek Consolidated Gold Mining Co v Hack (1894) 15 LR (NSW) Eq 207 …. 4.6
Baldwin v Cole (1704) 6 Mod Rep 212; 87 ER 964 …. 5.48
Ball v Consolidated Rutile Ltd [1991] 1 Qd R 524 …. 10.84, 10.85, 25.87
Ballard v Multiplex [2012] NSWSC 426 …. 24.60, 24.67
— v North British Railway Co [1923] SC 43 …. 11.110
Ballina Shire Council v Ringland (1994) 33 NSWLR 680 …. 22.4, 22.74, 24.101
Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379 …. 3.63, 6.29
Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85 …. 22.72
Balven v Thurston [2013] NSWSC 210 …. 3.22, 3.23
— v — [2015] NSWSC 1103 …. 4.64
Bamberger v Mirror Newspapers Ltd (1969) 43 ALJR 242 …. 23.81
Bamford v Turnley (1860) 3 B & S 62; 122 ER 27 …. 25.25, 25.42, 25.47, 25.98
Bangoura v The Washington Post [2005] OJ No 3849 …. 22.24
Bank of New South Wales v Owston (1879) 4 App Cas 270 …. 20.27
Banks v Ferrari [2000] NSWSC 874 …. 5.56, 5.60, 6.45
Bankstown City Council v Alamdo Holdings Pty Ltd (2005) 223 CLR 660 …. 1.19, 15.8, 25.39, 25.58,
25.70
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; 65 ALR 1 …. 9.26, 9.32
Barbagallo v J & F Catelan Pty Ltd [1986] 1 Qd R 245 …. 25.18, 25.53, 25.74, 25.102
Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 …. 23.51, 23.52
Barclay v Penberthy (2012) 246 CLR 258; 291 ALR 608 …. 10.91, 10.93, 10.112, 16.1, 17.5, 17.7, 17.8
Barker v Corus (UK) Ltd [2006] 2 AC 572; [2006] 3 All ER 785 …. 12.47
— v Furlong [1891] 2 Ch 172 …. 5.8
— v Permanent Seamless Floors Pty Ltd [1983] 2 Qd R 561 …. 21.9
— v R (1983) 153 CLR 338; 47 ALR 1 …. 4.25, 4.39, 6.9
Barnes v Hay (1988) 12 NSWLR 337 …. 12.58
Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428 …. 12.21
— v Cohen [1921] 2 KB 461 …. 16.23, 16.26
Barrak Corp Pty Ltd v Kara Group of Companies Pty Ltd [2014] NSWCA 395 …. 11.110
Barrett v J R West Ltd [1970] NZLR 789 …. 19.26
Barton v Armstrong [1969] 2 NSWR 451 …. 3.22, 3.23
Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; 204 ALR 193 …. 23.35,
23.36, 23.42, 23.43, 23.44, 23.46, 23.58
Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; 161 ALR 399 …. 15.3
Bathurst City Council v Saban (No 2) (1986) 58 LGRA 201 …. 25.17
Baxter v Obacelo Pty Ltd (2001) 205 CLR 635; 184 ALR 616 …. 21.1, 21.2, 21.5, 21.7, 21.13, 21.14
— v Woolcombers Ltd (1963) 107 Sol Jo 553 …. 11.11
Bazley v Curry (1999) 174 DLR (4th) 45; [1999] 2 SCR 534 …. 20.5, 20.41, 20.42, 20.49
BBMB Finance (Hong Kong) Ltd v Eda Holdings Ltd [1991] 2 All ER 129; [1990] 1 WLR 409 …. 5.83,
5.85
Beach Petroleum NL v Johnson (1993) 115 ALR 411 …. 19.76
Beardmore v Franklins Management Services Pty Ltd [2003] 1 Qd R 1 …. 9.13
Beaudesert Shire Council v Smith (1966) 120 CLR 145 …. 2.26, 2.27
Beckett v New South Wales (2013) 248 CLR 432; 297 ALR 206 …. 7.15, 7.17
Beckingham v Port Jackson & Manly Steamship Co (1957) SR (NSW) 403 …. 6.42
Beckwith v Shordike (1767) 4 Burr 2092; 98 ER 91 …. 4.43, 26.28
Beechwood Homes (NSW) Pty Ltd v Camenzuli [2010] NSWSC 521 …. 24.99
Behrens v Bertram Mills Circus Ltd [1957] 2 QB 1; [1957] 1 All ER 583 …. 26.3, 26.8, 26.10, 26.11, 26.15
Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs (2004)
219 CLR 486; 208 ALR 271 …. 9.84
Beitzel v Crabb [1992] 2 VR 121 …. 23.20
Bellambi Coal Co Ltd v Murray (1909) 9 CLR 568 …. 9.42
Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 …. 23.52
Belsize Motor Supply Co v Cox [1914] 1 KB 244 …. 5.89
Belvoir Finance Co Ltd v Stapleton [1971] 1 QB 210 …. 5.74
Bendal Pty Ltd v Mirvac Project Pty Ltd (1991) 23 NSWLR 464 …. 4.20, 4.67
Benic v New South Wales [2010] NSWSC 1039 …. 11.44
Benjamin v Storr [1874] LR 9 CP 400 …. 25.85
Benmax v Austin Motor Co Ltd [1955] AC 370 …. 11.96
Bennett v Dopke [1973] VR 239 …. 6.30
— v Minister of Community Welfare (1992) 176 CLR 408; 107 ALR 617 …. 12.28, 12.76
Benning v Wong (1969) 122 CLR 249 …. 6.50, 25.31, 25.58, 25.72
Berkoff v Burchill [1996] 4 All ER 1008 …. 22.27, 22.37, 22.39, 22.46, 22.50
Bernstein v Skyviews & General Ltd [1978] QB 479 …. 4.19, 4.20, 4.44, 7.22
Berry v British Transport Commission [1962] 1 QB 306 …. 7.18
— v Humm & Co [1915] 1 KB 627 …. 16.27
Berryman v Joslyn; Wentworth Shire Council v Joslyn [2004] NSWCA 121 …. 13.12
Berwin v Donohoe (1915) 21 CLR 1 …. 11.94
Besozzi v Harris (1858) 175 ER 650 …. 26.10
Besser v Kermode (2011) 282 ALR 314 …. 23.15
Best v Samuel Fox & Co Ltd [1952] AC 716 …. 17.10, 17.11
Betts v Whittingslowe (1945) 71 CLR 637 …. 12.53
Bevanere Pty Ltd v Lubidineuse (1985) 7 FCR 325; 59 ALR 334 …. 19.100
Bici v Ministry of Defence [2004] EWHC 786 (QB) …. 3.16
Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 …. 23.87
— v John Fairfax & Sons Ltd [1982] 1 NSWLR 498 …. 23.87
Bielitski v Obadiak (1922) 65 DLR 627 …. 7.3
Biggar v McLeod [1978] 2 NZLR 9 …. 9.111
Bilambil-Terranora Pty Ltd v Tweed Shire Council [1980] 1 NSWLR 465 …. 4.60
Bily v Arthur Young & Co (1992) 834 P 2d 745 …. 19.45
Bird v Holbrook (1828) 4 Bing 628; 130 ER 911 …. 2.25
— v Jones (1845) 7 QB 742; 115 ER 668 …. 3.53
Birss v R [1923] NZLR 1058 …. 16.8
Bishop v New South Wales [2000] NSWSC 1042 …. 22.90
Bisset v Wilkinson [1927] AC 177 …. 19.6
Bitumen and Oil Refineries (Aust) Ltd v Commissioner for Government Transport (1955) 92 CLR 200
…. 21.17
Bitupave Ltd (t/as Boral Asphalt) v Pillinger (2015) 72 MVR 460 …. 11.44
Bjelke-Petersen v Warburton [1987] 2 Qd R 465 …. 22.74
Black v Walden (2008) Aust Torts Reports ¶81-950 …. 16.41
Blacker v Waters (1928) 28 SR (NSW) 406 …. 2.7, 2.20
Blackmore v Beames (SASC, King CJ, Cox and Matheson JJ, No 92–709, 8 February 1993, unreported)
…. 11.19
Blackney v Clark [2013] NSWDC 144 …. 13.98
Blacktown City Council v Hocking (2008) Aust Torts Reports ¶81-956 …. 10.150
Blades v Higgs (1861) 10 CBNS 713; 142 ER 634 …. 5.72
Blake v JR Perry Nominees Pty Ltd (2012) 38 VR 123 …. 20.28, 20.45
Bleyer v Google Inc (2014) 88 NSWLR 670; 311 ALR 529 …. 22.78
Bliss v Hall (1838) 4 Bing (NC) 183; 132 ER 758 …. 25.5, 25.64
Bloodworth v Cormack [1949] NZLR 1058 …. 25.98
— v Gray (1844) 7 Man & G 334; 135 ER 140 …. 22.16
Blundell v Musgrave (1956) 96 CLR 73 …. 15.61, 15.89, 17.21
Blyth v Birmingham Waterworks Co (1856) 11 Ex 781 …. 1.6, 11.2
Boardman v Sanderson [1964] 1 WLR 1317 …. 10.41
Bob Jane Corp Pty Ltd v ACN 149 801 141 Pty Ltd (2013) 97 ACSR 127 …. 24.23
Boden v Roy Gordon & Gordon [1985] 1 Qd R 482 …. 15.50
Bodenstein v Hope Street Urban Compassion [2014] NSWDC 126 …. 23.132
Bodley v Reynolds (1846) 8 QB 779; 115 ER 1066 …. 5.81
Bolam v Friern Hospital Management Committee [1957] 2 All ER 118; [1957] 1 WLR 582 …. 11.20,
11.73, 11.76, 11.77
Boland v Yates Property Corporation Pty Ltd (1999) 167 ALR 575 …. 19.17
Bolitho v City and Hackney Health Authority [1998] AC 232; [1997] 4 All ER 771 …. 11.73
Bollinger v Costa Brava Wine Co Ltd (No 2) [1961] 1 WLR 277 …. 24.18, 24.19, 24.22
Bolton v Stone [1951] AC 850; [1951] 1 All ER 1078 …. 11.4, 11.51, 11.52
Bolton, Re; Beane, Ex parte (1987) 162 CLR 514 …. 3.64
Bone v Seale [1975] 1 All ER 787 …. 25.75
Bonic v Fieldair (Deniliquin) Pty Ltd [1999] NSWSC 636 …. 25.27
Bonnington Castings Ltd v Wardlaw [1956] AC 613 …. 8.20, 12.42, 12.44, 12.52
Borland v Makauskas [2000] QCA 521 …. 9.20, 11.43, 11.86
Botany Bay City Council v Latham (2013) 197 LGERA 211 …. 10.151
Boughey v R (1986) 161 CLR 10 …. 3.10, 3.11
Bourgoin SA v Ministry of Agriculture [1986] QB 716 …. 18.63
Bourk v Power Serve Pty Ltd [2008] QSC 29 …. 9.41
Bowditch v McEwan (2002) 36 MVR 235 …. 1.22, 1.57, 9.59
Bower v Peate [1876] 1 QBD 321 …. 20.71
Bowin Designs Pty Ltd v Australian Consumers Association (1996) A Def R 52-078 …. 23.44
Bowling v Weinert [1978] 2 NSWLR 282 …. 18.10
Boyd v Mirror Newspapers Ltd [1980] 2 NWSLR 449 …. 22.43
— v State Government Insurance Office (Qld) [1978] Qd R 195 …. 15.40
Boyle v Kodak Ltd [1969] 2 All ER 439; [1969] 1 WLR 661 …. 18.29
Bradburn v Great Western Railway Co (1874) LR 10 Ex 1 …. 15.134
Bradford Corporation v Pickles [1895] AC 587 …. 1.8
Bradford Third Equitable Benefit Building Society v Borders [1941] 2 All ER 205 …. 19.76, 19.78
Bradley v Wingnut Films Ltd [1993] 1 NZLR 415 …. 7.7
Brady v Schatzel; Brady, Ex parte [1911] St R Qd 206 …. 3.26, 3.27, 3.28
Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213 …. 21.17, 21.20
Brand v Bardon [1997] NSWCA 48 …. 9.123, 9.126
Brandeis Goldschmidt & Co Ltd v Western Transport Co Ltd [1981] QB 864 …. 5.92
Branson v Bower [2002] QB 737 …. 23.89
Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd (2007) 20 VR 311 …. 4.20, 4.68, 15.10
Bresatz v Przibilla (1962) 108 CLR 541 …. 15.83
Brierley v Kendall (1852) 17 QB 937 …. 5.74
Briess v Woolley [1954] AC 333 …. 19.82
Brightwater Care Group v Rossiter [2009] WASC 229 …. 6.25
Brinsmead v Harrison (1872) LR 7 CP 547 …. 21.4, 21.6, 21.10
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1 …. 14.2, 14.59,
14.60
Bristow v Adams [2010] NSWCA 166 …. 23.127
British Celanese Ltd v A H Hunt (Capacitors) Ltd [1969] 1 WLR 959 …. 25.27
British Electric Railway Co Ltd v Gentile [1914] AC 1034 …. 16.7
British Fame (Owners) v Macgregor (Owners) [1943] AC 197 …. 13.46
British Motor Trade Association v Gray 1951 SC 586 …. 24.41
— v Salvardori [1949] Ch 556 …. 24.51
British Railways Board v Herrington [1972] AC 877 …. 9.9
British Telecommunications plc v One in a Million Ltd [1998] 4 All ER 476 …. 15.9
British Transport Commission v Gourley [1956] AC 185 …. 15.85
British Westinghouse Electric & Mfg Co Ltd v Underground Electric Railways Co of London Ltd [1912]
AC 673 …. 15.39
Broadhurst v Millman [1976] VR 208 …. 11.90
Brock v Copeland (1794) 1 Esp 203; 170 ER 328 …. 26.13
Broderick Motors Pty Ltd v Rothe (1986) Aust Torts Reports ¶80-059 …. 25.24
Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512; 180 ALR
145 …. 1.4, 10.6, 10.19, 10.20, 10.28, 10.36, 10.135, 10.147, 10.148, 25.84, 25.85, 25.99
Broken Hill City Council v Tiziani (1997) 93 LGERA 113 …. 15.51
Broken Hill Proprietary Co Ltd v Fisher (1984) 38 SASR 50 …. 19.89
Brook v Cook (1961) Sol Jo 684 …. 26.8
Brooke v Bool [1928] 2 KB 578 …. 20.25, 21.5
Brookfield Multiplex Ltd v Owners Corp Strata Plan (2014) 254 CLR 185; 313 ALR 408 …. 10.28,
10.114, 10.115, 10.118
Broom v Morgan [1953] 1 QB 597 …. 20.8
Broughton v Competitive Foods Australia Pty Ltd (2005) Aust Torts Reports ¶81-791 …. 11.28
Brown v Hawkes [1891] 2 QB 718 …. 7.16
— v Raphael [1958] Ch 636; [1958] 2 All ER 79 …. 19.7
— v Willington [2001] ACTSC 100 …. 15.104
Brulhart v Jarman [1964] NSWR 1210 …. 18.18
Brunsden v Humphrey (1884) 14 QBD 141 …. 12.1, 15.34, 16.8
Bruton v Estate Agents Licensing Authority [1996] 2 VR 274 …. 23.42, 23.63
Bryan v Maloney (1995) 182 CLR 609; 128 ALR 163 …. 1.30, 10.5, 10.13, 10.28, 10.75, 10.79, 10.97,
10.107, 10.108, 10.109, 10.110, 10.113, 10.116, 10.117, 10.118, 14.24
BT Australia Ltd v Raine & Horne Pty Ltd [1983] 3 NSWLR 221 …. 19.44, 19.48, 19.50
Buckle v Bayswater Road Board (1936) 57 CLR 259 …. 10.146
— v Holmes [1926] 2 KB 125 …. 26.24
Bugge v Brown (1919) 26 CLR 110 …. 20.27, 20.28, 20.34
Bujdoso v New South Wales (2004) 1512 A Crim R 235 …. 9.83
Bulli Coal Mining Co v Osborne [1899] AC 351 …. 4.17
Bullock v Miller (1987) Aust Torts Reports 80-128 …. 15.73
Bulsey v Queensland [2015] QCA 187 …. 3.58
Bunney v South Australia (2000) 77 SASR 319 …. 4.70
Bunnings Group Ltd v CHEP Australia Ltd (2011) 82 NSWLR 420 …. 5.39, 5.48, 5.49, 5.52, 5.61, 5.64
Bunyan v Jordan (1937) 57 CLR 1 …. 3.28, 7.3
Burford v Allen (1993) 60 SASR 428 …. 15.66, 15.73
Burgess v Florence Nightingale Hospital for Gentlewomen [1955] 1 QB 349 …. 16.23
Burke v LFOT Pty Ltd (2002) 209 CLR 282 …. 9.109
Burnett v Randwick City Council [2006] NSWCA 196 …. 5.32
Burnicle v Cutelli [1982] 2 NSWLR 26 …. 17.15
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; 120 ALR 42 …. 9.122, 20.17, 20.62,
20.66, 20.67, 20.70, 20.71, 20.73, 25.38
Burns v Edman [1970] 2 QB 541 …. 12.9
Burrows v Rhodes [1899] 1 QB 816 …. 19.80
Burton v Davies [1953] St R Qd 26 …. 3.54
— v Islington Health Authority [1993] QB 204 …. 9.59
— v Spragg [2007] WASC 247 …. 4.17
Bury v Pope (1586) 78 ER 375 …. 25.21
Bus v Sydney City Council (1988) 12 NSWLR 675 …. 11.30
— v — (1989) 167 CLR 78; 85 ALR 577 …. 11.30, 11.81, 11.88
Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; 212 ALR 357 …. 19.97, 19.109
Butler v Egg and Egg Pulp Marketing Board (1966) 114 CLR 185 …. 5.79, 5.86, 5.93, 15.25, 25.73
— v Fife Coal Co Ltd [1912] AC 149 …. 9.33, 9.36, 18.18
— v Simmonds Crowley & Galvin [1999] QCA 475 …. 18.47, 18.50
Butterfield v Forrester (1809) 11 East 60; 103 ER 926 …. 11.111, 13.2, 25.101
Buxton v Minister of Housing and Local Government [1961] 1 QB 278 …. 18.16
Byrne v Australian Airlines Ltd (1995) 185 CLR 410; 131 ALR 422 …. 18.3, 18.4, 18.9, 18.10, 18.12,
18.18, 18.19
— v Boadle (1863) 2 H & C 722; 159 ER 299 …. 11.102, 11.107
— v Deane [1937] 2 All ER 204 …. 22.33, 22.34, 22.35, 22.59, 22.89

C
C v Holland [2012] 3 NZLR 672 …. 7.31
C Czarnikow Ltd v Koufos [1969] 1 AC 350 …. 9.26
C R Taylor (Wholesale) Ltd v Hepworths Ltd [1977] 2 All ER 784; [1977] 1 WLR 659 …. 4.57
Cabassi v Vila (1940) 64 CLR 130 …. 23.24
Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2007) 159 FCR 397; 239 ALR 662
…. 24.24, 24.35
— v Pub Squash Co Pty Ltd (1980) 32 ALR 387 …. 24.9, 24.12, 24.21, 24.24
Cairns v John Fairfax & Sons Ltd [1983] 2 NSWLR 708 …. 22.63, 23.138
CAL No 14 Pty Ltd (t/as Tandara Motor Inn) v Motor Accidents Insurance Board (2009) 239 CLR 390;
260 ALR 606 …. 9.7, 9.16
Calder v Boyne Smelters Ltd [1991] 1 Qd R 325 …. 15.151
Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202 …. 10.8, 10.126, 11.60, 11.66
Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33 …. 8.24
Caltex Oil (Australia) Pty Ltd v The Dredge ‘Willemstad’ (1976) 136 CLR 529; 11 ALR 227 …. 10.22,
10.23, 10.28, 10.77, 10.79, 10.81, 10.82, 10.83, 10.85, 10.86, 10.87, 10.93, 10.94
Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649 …. 10.28
Calveley v Chief Constable of Merseyside Police [1989] AC 1228; 1 [1998] 1 All ER 1025 …. 12.15
Calwell v Ipec Australia Ltd (1975) 135 CLR 321 …. 23.70
Cambridge University Press v University Tutorial Press (1928) 45 RPC 335 …. 24.28
Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264; [1994] 1 All ER 53 …. 25.37
Cameron v Commissioner for Railways [1964] Qd R 480 …. 1.25, 9.80
Caminer v Northern & London Investment Trust Ltd [1951] AC 88 …. 11.20
Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; 257 ALR 610 …. 19.103, 19.109
— v Li-Pina (2007) 47 MVR 279 …. 16.20, 16.38
— v MGN Ltd [2004] 2 All ER 995 …. 5.31
Campomar Sociedad, Limitada v Nike International Ltd (2000) 202 CLR 45; 169 ALR 677 …. 24.13,
24.16
Canadian Pacific Railway Company v Lockhart [1942] AC 591 …. 20.35
Canberra Data Centres Pty Ltd v Vibe Constructions (ACT) Pty Ltd (2010) 173 ACTR 33 …. 24.5
Candler v Crane Christmas & Co [1951] 2 KB 164 …. 19.10, 19.11
Cannon v Tahche (2002) 5 VR 317 …. 18.60
Canterbury Bankstown Rugby League Football Club Pty Ltd v Rogers (1993) Aust Torts Reports ¶81-
 246 …. 6.7, 20.37
Canterbury Municipal Council v Taylor [2002] NSWCA 24 …. 13.51, 13.52
Caparo Industries Plc v Dickman [1990] 2 AC 605; [1990] 1 All ER 568 …. 10.7, 10.15, 10.29
Capebay Holdings Pty Ltd v Sands [2002] WASC 287 …. 9.108
Carangelo v New South Wales [2016] NSWCA 126 …. 12.40
Carey v Freehills (2013) 303 ALR 445 …. 10.106
— v Lake Macquarie City Council (2007) Aust Torts Reports ¶81-874 …. 13.50
Carlton v Pix Print Pty Ltd [2000] FCA 337 …. 19.61
Carmarthenshire County Council v Lewis [1955] AC 549 …. 9.76, 12.78
Carrera v Honeychurch (1983) 32 SASR 511 …. 26.29
Carrier v Bonham [2002] 1 Qd R 474 …. 1.27, 6.65, 7.6, 11.13
Carslogie Steamship Co Ltd v Royal Norwegian Government [1952] AC 292 …. 12.72
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; 113 ALR 577 …. 23.116, 23.121
Carter v Kenyon (1863) 2 SCR (NSW) 222 …. 25.6
— v Walker (2010) Aust Torts Reports ¶82-076 …. 2.24, 3.3, 3.13, 3.17, 3.84, 7.3
— v — (2010) 32 VR 1 …. 2.16
Cartledge v E Jopling & Sons Ltd [1963] AC 758; [1963] 1 All ER 341 …. 14.17, 14.18, 14.22, 14.24,
15.33
Casey v Australian Broadcasting Commission [1981] 1 NSWLR 305 …. 23.3
— v Zurgalo [1968] ALR 134 …. 15.121
Casley-Smith v F S Evans & Sons Pty Ltd (No 5) (1988) 67 LGRA 108 …. 25.15
Cassell & Co Ltd v Broome [1972] AC 1027 …. 3.75, 19.84
Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331 …. 22.32, 22.57, 22.71
— v Ministry of Health [1951] 2 KB 343 …. 9.101, 20.18
Castle v St Augustine’s Links Ltd (1922) 38 TLR 615 …. 25.80
Caterson v Commissioner for Railways (1973) 128 CLR 99 …. 13.9, 13.14, 13.24
Cattanach v Melchior (2003) 215 CLR 1; 199 ALR 131 …. 1.61, 8.6, 10.5, 10.34, 12.8, 12.14, 12.86, 15.28,
15.41
Cavalier v Pope [1906] AC 428 …. 9.21
Central Queensland Speleological Society Inc v Central Queensland Cement (No 1) [1989] 2 Qd R 512
…. 16.8
Century Insurance Co Ltd v Northern Ireland Road Transport Board [1942] AC 509 …. 20.28, 20.32
Cerutti v Crestside Pty Ltd [2014] QCA 33 …. 23.139
CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47 …. 15.41
Chabbra Corporation Pty Ltd v Jag Shakti (Owners) [1986] AC 337; [1986] 1 All ER 480 …. 5.85, 5.89
Chadwick v Allen [2012] SADC 105 …. 13.45
Chairman, National Crime Authority v Flack (1998) 156 ALR 501 …. 5.37
Chakravarti v Advertiser Newspapers (1998) 193 CLR 519; 154 ALR 294 …. 22.27, 22.38, 22.49
Challen v McLeod Country Golf Club (2004) Aust Torts Reports ¶81-760 …. 25.8, 25.32
Chan v Acres [2015] NSWSC 1885 …. 9.2, 10.112, 10.114
Chandra v Perpetual Trustees Victoria Ltd (2007) 13 BPR 24,675; Aust Torts Reports ¶81-896; [2007]
NSWSC 694 …. 21.42
Chang v Chang [1973] 1 NSWLR 708 …. 1.24
Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; 241 ALR 468 …. 23.80, 23.81, 23.82,
23.87
Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232 …. 23.5, 23.134
— v Parras (2002) Aust Torts Reports ¶81-675 …. 22.73
Chaplin v Dunstan Ltd [1938] SASR 245 …. 20.31
Chapman v Ellesmere [1932] 2 KB 431 …. 23.101
— v Hearse (1961) 106 CLR 112 …. 10.8, 11.43, 12.64, 12.78, 13.25, 13.98
Chappel v Hart (1998) 195 CLR 232; 156 ALR 517; [1998] HCA 55 …. 12.20, 12.26, 12.45, 12.88
Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports ¶80-691 …. 23.126
— v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 …. 23.80, 23.106, 23.107
Charsley v Jones (1889) 53 JP 280 …. 9.21
Chatterton v Gerson [1981] 1 All ER 257 …. 6.16
— v Secretary of State for India [1895] 2 QB 189 …. 23.32
Chester v Waverley Corporation (1939) 62 CLR 1 …. 10.41, 10.48
Chew v Amanatidis [2009] SASC 334 …. 19.28
Chic Fashions (West Wales) Ltd v Jones [1968] 2 QB 299 …. 4.38
Chicco v Corporation of City of Woodville (1990) Aust Torts Reports ¶81-028 …. 11.78
Chief Commissioner of Railways and Tramways (NSW) v Boylson (1915) 19 CLR 505 …. 16.23
Childrens Television Workshop Inc v Woolworths (NSW) Ltd [1981] 1 NSWLR 273 …. 24.20, 24.27
Chin Keow v Government of Malaysia [1967] 1 WLR 813 …. 11.14
Chinery v Viall (1860) 5 H & N 288; 157 ER 1192 …. 5.86
Chisholm v State Transport Authority (1987) 46 SASR 148 …. 11.99
Chong v CC Containers Pty Ltd [2015] VSCA 137 …. 24.62
Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91; 91 ALR 149 …. 9.24, 18.16
Christiansen v Fairfax Media Publications Pty Ltd [2012] NSWSC 1258 …. 22.74
Christie v Davey [1893] 1 Ch 316 …. 25.52
Christopher v MV ‘Fiji Gas’ (1983) Aust Torts Reports ¶81-202 …. 10.84, 10.85
Christopherson v Bare (1848) 116 ER 554 …. 3.13
Church of Scientology Inc v Anderson [1980] WAR 71; (1979) 46 FLR 202 …. 22.17
— v Woodward (1982) 154 CLR 25; 43 ALR 587 …. 7.23
Church of Scientology of California Inc v Reader’s Digest Services Pty Ltd [1980] 1 NSWLR 344 ….
23.107
Cinnamond v British Airports Authority [1980] 1 WLR 582 …. 4.39
City Motors (1933) Pty Ltd v Southern Aerial Super Service Pty Ltd (1961) 106 CLR 477 …. 5.59, 5.89
Civil Service Co-Op Society of Victoria Ltd v Blyth (1914) 17 CLR 601; 20 ALR 161 …. 19.72
Clarey v Principal and Council of the Women’s College (1953) 90 CLR 170; [1953] ALR 850 …. 25.43
Clark v Ainsworth (1996) 40 NSWLR 463 …. 23.122
Clark Boyce v Mouat [1993] 3 NZLR 641 …. 9.105
Clarke v Army & Navy Co-operative Society Ltd [1903] 1 KB 155 …. 9.123
— v President, Councillors and Ratepayers of the Shire of Gisborne [1984] VR 971 …. 10.10
Clavel v Savage [2013] NSWSC 775 …. 7.6
Clearlite Holdings Ltd v Auckland City Corporation [1976] 2 NZLR 729 …. 25.96
Clegg v Deardon (1848) 12 QB 576; 116 ER 986 …. 4.47
Clement v Backo [2007] 2 Qd R 99 …. 15.101
— v Milner (1880) 3 Esp 95; 170 ER 550 …. 6.47
Clifford v Dove [2006] NSWSC 314 …. 25.31
Clifton v Bury (1887) 4 TLR 8 …. 4.44
Clissold v Cratchley [1910] 2 KB 244 …. 18.49
Club Italia (Geelong) Inc v Ritchie (2001) 3 VR 447 …. 9.24
Coates v Government Insurance Office of New South Wales (1995) 36 NSWLR l …. 10.55, 10.56, 12.16
Coca Cola Co v PepsiCo Inc (No 2) (2014) 322 ALR 505; 109 IPR 429 …. 24.24
Coco v R (1994) 179 CLR 427; 120 ALR 415 …. 6.50
Cohen v City of Perth (2000) 112 LGERA 234 …. 25.17, 25.26, 25.48, 25.49, 25.57, 25.69
Cohen, Re; National Provincial Bank Ltd v Katz [1953] Ch 88 …. 4.17
Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469; 207 ALR 52 …. 1.37,
8.6, 9.11, 9.15, 10.20, 10.28, 10.37, 10.39, 11.33
— v Turner (1704) 6 Mod Rep 149; 90 ER 958 …. 3.8, 3.9, 3.16
Coleman v Buckingham’s Ltd [1963] SR (NSW) 171 …. 18.41
— v Watson [2007] QSC 343 …. 3.83
Collins v Carey [2002] QSC 398 …. 26.6
— v — (2003) Aust Torts Reports ¶81-709 …. 26.30
Collins v Clarence Valley Council [2015] NSWCA 263 …. 10.151, 11.63, 13.94
— v Wilcock [1984] 3 All ER 374; [1984] 1 WLR 1172 …. 3.2, 3.11
Colls v Home and Colonial Stores Ltd [1904] AC 179 …. 25.21
Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of
Australia Ltd (1931) 46 CLR 41; [1932] ALR 73 …. 20.53, 20.55, 20.56
Comalco Ltd v Australian Broadcasting Corporation (1985) 64 ACTR 1 …. 23.88
Commercial Banking Co of Sydney Ltd v R H Brown & Co (1972) 126 CLR 337 …. 19.78, 19.79
Commissioner for Railways v Halley (1978) 20 ALR 409 …. 13.16
— v Small [1957] ALR 529 …. 8.24, 11.93
Commissioner for Railways (NSW) v Scott (1959) 102 CLR 392 …. 1.9, 17.2, 17.3, 17.4
Commissioner of Main Roads v Jones (2005) 215 ALR 418; 79 ALJR 1104 …. 11.96
Commissioner of Railways v Ruprecht (1979) 142 CLR 563; 25 ALR 481 …. 13.7, 13.9, 13.15
Commonwealth v Chessell (1991) 101 ALR 182 …. 15.52
— v Connell (1986) 5 NSWLR 218 …. 20.19
— v Cornwell (2007) 229 CLR 519; 234 ALR 148 …. 14.26, 19.62
— v Fernando (2012) 200 FCR 1; 287 ALR 267 …. 18.58
— v Introvigne (1982) 150 CLR 258; 41 ALR 577 …. 8.9, 9.71, 9.75, 9.76, 11.96, 20.67
— v McLean (1996) 41 NSWLR 389 …. 12.67
— v Quince (1944) 68 CLR 227 …. 17.4, 20.19
— v Winter (1993) 19 MVR 215 …. 11.67
Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 …. 8.24
— v Smith (1991) 102 ALR 453 …. 9.105
Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343 …. 1.9, 7.12
— v Smith (1938) 59 CLR 527 …. 7.15, 7.17
Commonwealth of Australia v Verwayen (1990) 170 CLR 394 …. 14.7
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services
Union of Australia v Corke Instrument Engineering (Australia) Pty Ltd; Siemens Ltd v CEPU
(2005) 223 ALR 480 …. 24.52
Complete Technology Integrations Pty Ltd v Green Energy Management Solutions Pty Ltd [2011] FCA
1319 …. 24.14
ConAgra Inc v McCain Foods (Aust) Pty Ltd (1992) 33 FCR 302; 106 ALR 465 …. 24.7, 24.9, 24.10,
24.14, 24.17, 24.23
Connolly v Sunday Times Publishing Co Ltd (1908) 7 CLR 263; 15 ALR 29 …. 15.18
Consolidated Company v Curtis & Son [1892] 1 QB 495 …. 1.5, 5.45, 5.55, 6.64
Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 …. 22.65, 22.66, 22.70
Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (ACN 004 620 731)
[2014] VSCA 348 …. 24.75
Conway v George Wimpey & Co Ltd [1951] 2 KB 266 …. 20.35
Cook v Batchellor (1802) 3 Bos & Pul 151 …. 22.86
— v Cook (1986) 162 CLR 376; 68 ALR 353 …. 1.57, 11.22, 11.23, 11.24, 11.25
Cookson v Harewood [1932] 2 KB 478 …. 23.100
Cope v Sharpe (No 2) [1912] 1 KB 496 …. 6.41, 6.42
Copyright Agency Ltd v Haines [1982] 1 NSWLR 182; 40 ALR 264 …. 2.26, 24.5
Corbett v Pallas (1995) Aust Torts Reports ¶81-239 …. 25.98
Cornfoot v Fowke (1840) 6 M & W 358; 151 ER 450 …. 19.65, 19.77
Cornwall v Rowan (2004) 90 SASR 269 …. 18.54, 18.56
Corporation of London v Appleyard [1963] 2 All ER 834 …. 4.17
Corvisy v Corvisy [1982] 2 NSWLR 557 …. 3.85
Coryton v Lithebye (1670) 2 Wm Saund (5th ed) 115 …. 22.86
Couch v Steel (1854) 118 ER 1193 …. 18.11
Coupey v Henley, Whale and Webster (1797) 170 ER 448; 2 Esp 540 …. 3.69
Council of the City of Greater Taree v Wells [2010] NSWCA 147 …. 11.35
Cousins v Wilson [1994] 1 NZLR 463 …. 4.13
Cowell v Corrective Services Commission (NSW) (1988) 13 NSWLR 714 …. 3.17, 3.71, 6.64
— v Rosehill Racecourse Co Ltd (1937) 56 CLR 605 …. 4.31, 4.34, 4.49
Cox v Burbridge (1863) CB (NS) 430; 143 ER 171 …. 26.24, 26.26
— v New South Wales (2007) 71 NSWLR 225 …. 15.30
Coyne v Citizen Finance Ltd (1991) 172 CLR 211; 99 ALR 252 …. 23.123, 23.138, 23.140
Craftsman Homes Australia Pty Ltd v TCN Channel Nine Pty Ltd [2006] NSWSC 519 …. 4.62, 4.64
Craig v Marsh (1935) 35 SR (NSW) 323 …. 5.84
Credit Lyonnais Nederland NV (now known as General Bank Nederland NV) v Export Credits
Guarantee Department [2000] 1 AC 486; [1999] 1 All ER 929 …. 20.29, 20.52
Cresswell v Swirl [1947] 2 All ER 730 …. 6.41, 6.42
Cridge v Commonwealth (1961) 10 FLR 275 …. 21.24
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; 167 ALR 1 …. 10.15, 10.20,
10.28, 10.121, 10.140, 10.141
Cripps v Vakras [2014] VSC 279 …. 23.79
Crofter Handwoven Harris Tweed Co Ltd v Veitch [1942] AC 435 …. 24.60, 24.63, 24.66, 24.70
Crofts v Waterhouse (1825) 3 Bing 319; 130 ER 536 …. 9.64
Crook v Thyssen Mining Construction of Australia Pty Ltd (1992) 9 SR (WA) 10 …. 11.109
Cross v Certain Lloyds Underwriters [2011] NSWCA 136 …. 3.78
— v Denley (1952) 52 SR (NSW) 112 …. 22.77
Crowther v Australian Guarantee Corporation Ltd (1985) Aust Torts Reports ¶80-709 …. 5.65
Cruttendon v Brenock [1949] VLR 366 …. 26.6
CS v Bierdrzycka [2011] NSWSC 1213 …. 9.100, 12.86
CSR Ltd v Della Maddalena (2006) 224 ALR 1; 80 ALJR 458 …. 1.15, 10.44, 12.8, 12.17
— v Eddy (2005) 226 CLR 1; 222 ALR 1 …. 15.54, 15.101, 15.104, 15.105, 17.15
Cubillo v Commonwealth (2001) 112 FCR 455; 183 ALR 249 …. 3.51, 20.21
Cull v Green (1924) 27 WALR 62 …. 25.14
Cullen v Trappell (1980) 146 CLR 1; 29 ALR 1 …. 15.85, 15.146
Cumberland v Clark (1996) 39 NSWLR 514 …. 7.13
Cummings v Granger [1977] 1 All ER 104; [1976] 3 WLR 842 …. 26.12, 26.13
Cunliffe v Woods [2012] VSC 254 …. 23.28, 23.98
Cunningham v Harrison [1973] 1 QB 942; 3 All ER 463 …. 15.89
Curmi v McLennan [1994] 1 VR 513 …. 9.82
Curran v Greater Taree City Council (1992) Aust Torts Reports ¶81-152 …. 19.27
Curtis v Chemical Cleaning & Dyeing Co [1951] 1 KB 805 …. 19.5
Cusack v Heath [1950] QWN 16 …. 15.134
Cush v Dillon (2011) 243 CLR 298; 279 ALR 631 …. 23.33, 23.39, 23.50
Cutler v United Dairies [1933] 2 KB 297 …. 13.98
— v Wandsworth Stadium Ltd [1949] AC 398 …. 18.17, 18.24
Curran v Young (1965) 112 CLR 99 …. 17.10, 17.20
Cutcheon v Davis [1964] QWN 4 …. 17.22
Cvetkovic v Princes Holdings (t/a Tilt Amusement Centre) (1989) 51 SASR 365 …. 13.63
Czatyrko v Edith Cowan University (2005) 214 ALR 349 …. 9.45, 13.16, 20.65

D
Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192 …. 11.96
Daborn v Bath Tramways Motor Co Ltd [1946] 2 All ER 333 …. 11.67
Daebo Shipping Co Ltd v Ship Go Star (2012) 207 FCR 220; 294 ALR 635 …. 24.40, 24.48
Daily Mirror Newspapers Ltd v Gardner [1968] 2 QB 762 …. 24.48
Daily Telegraph Co Ltd v Stuart (1928) 28 SR (NSW) 291 …. 25.45
Dairy Farmers Cooperative Ltd v Azar (1990) 170 CLR 293; 95 ALR 1 …. 18.18
Dalton v Henry Angus & Co (1881) 6 App Cas 740 …. 25.18, 25.19
D’Amico v Calavary Hospital Auxiliary Inc [2013] ACTSC 259 …. 9.34
Danby v Beardsley (1878) 43 LT 603 …. 7.12
Daniel v Anniversary Nominees Pty Ltd (1990) 9 SR (WA) 35 …. 11.108
Daniels v Burfield (1994) 125 ALR 33 …. 11.95
Dank v Whittaker [2014] NSWSC 732 …. 23.119
Dansar Pty Ltd v Bryon Shire Council (2014) 89 NSWLR 1 …. 10.142
Darby v Director of Public Prosecutions (2004) 61 NSWLR 558 …. 3.11
Darcy (bht Aldridge) v New South Wales [2011] NSWCA 413 …. 3.59, 3.61
Dare v Dobson [1960] SR (NSW) 474 …. 21.24
Darling Island Stevedoring & Lighterage Co Ltd v Long (1957) 97 CLR 36 …. 18.17, 18.19, 18.20, 20.5,
20.8
Darroch v Dennis [1954] VLR 282 …. 16.39
Dataflow Computer Services Pty Ltd v Goodman (1999) 168 ALR 169 …. 22.96
David v David [2009] NSWCA 8 …. 10.105
David Syme & Co v Canavan (1918) 25 CLR 234 …. 22.74
Davidson v J S Gilbert Fabrications Pty Ltd [1986] 1 Qd R 1 …. 5.79, 5.80, 15.45
Davie v New Merton Board Mills Ltd [1959] AC 604 …. 1.56, 9.42
Davies v Bennison (1927) 22 Tas LR 52 …. 4.45
— v London & Provincial Marine Insurance Co (1878) 8 Ch D 469 …. 19.75
— v Tomkins [2009] WASCA 2 …. 9.62
Davis v Bunn (1936) 56 CLR 246 …. 11.102, 11.103, 11.104, 11.110
— v Cole [1939] VLR 320 …. 26.24
— v Council of the City of Wagga Wagga [2004] NSWCA 34 …. 8.25
— v Gell (1924) 35 CLR 275; 31 ALR 49 …. 7.15
— v Nationwide News Pty Ltd [2008] NSWSC 693 …. 23.119
— v Pearce Parking Station Pty Ltd (1954) 91 CLR 642 …. 13.104
— v Swift (2014) 69 MVR 375 …. 13.26
Davis Contractors v Fareham Urban District Council [1956] AC 696 …. 11.5
Davison (as personal plaintiff representative of the estate of Staines, decd) v Wilkinson [2006] QSC 212
…. 4.69
Day v Bank of New South Wales (1978) 18 SASR 163; 19 ALR 321 …. 6.63
— v Ost [1973] 2 NZLR 385 …. 19.26
DC Thomson Ltd & Co v Deakin [1952] 1 Ch 646; [1952] 2 All ER 361 …. 24.43, 24.52, 24.53
De Beers Abrasive Products Ltd v International General Electric Co of New York Ltd [1975] 1 WLR 972
…. 24.90, 24.94
De Jager v Payneham & Magill Lodges Hall Inc (1984) 36 SASR 498 …. 25.8
De Reus v Gray (2003) 9 VR 432 …. 21.7
De Sales v Ingrilli (2002) 212 CLR 338; 193 ALR 130 …. 16.20, 16.34, 16.37, 16.38
Dean v Phung [2011] NSWSC 653 …. 6.11
— v — [2012] NSWCA 223 …. 3.13, 6.11, 6.15, 6.16, 6.17
Deasy Investments Pty Ltd v Monrest Pty Ltd [1996] QCA 466 …. 1.12, 25.7
Deatons Pty Ltd v Flew (1949) 79 CLR 370 …. 20.37, 20.38, 20.46
Deckers Outdoor Corporation Inc v Farley (No 5) (2009) 262 ALR 53; 83 IPR 245 …. 24.10, 24.20,
24.22, 24.32, 24.36
Dederer v Roads and Traffic Authority (2005) Aust Torts Reports ¶81-792 …. 11.59
Dee Trading Co Pty Ltd v Baldwin [1938] VLR 173 …. 5.70
Deen v Davies [1935] 2 KB 282 …. 26.38
Deepcliffe Pty Ltd v Council of the City of Gold Coast (2001) 118 LGERA 117 …. 24.4, 25.24, 25.89
Dehn v Attorney-General [1988] 2 NZLR 564 …. 6.42
Delaney v T P Smith Ltd [1946] KB 393 …. 4.5
Delaware Mansions Ltd v Westminster City Council [2001] 4 All ER 737 …. 25.11
Demagogue Pty Ltd v Ramensky (1992) 110 ALR 608 …. 19.104
Derrick v Cheung (1999) 29 MVR 351 …. 11.82
— v — (2001) 181 ALR 301 …. 11.82
Derring Lane Pty Ltd v Fitzgibbon (2007) 16 VR 563 …. 19.50
Derry v Peek (1889) 14 App Cas 337 …. 19.2, 19.64, 19.72
Dessent v The Commonwealth (1977) 51 ALJR 482 …. 15.151
Deutsch v Rodkin [2012] VSC 450 …. 24.63
Deutz Australia Pty Ltd v Skilled Engineering Ltd (2001) 162 FLR 173 …. 20.24
DHR International Inc, a company incorporated in Delaware in the United States of America v Challis
[2015] NSWSC 1567 …. 24.99
Diamond v Simpson (No 1) (2003) Aust Torts Reports ¶81-695 …. 15.130, 15.151
DIB Group Pty Ltd t/as Hill & Co v Cole [2009] NSWCA 210 …. 9.39
Dick v University of Queensland [2000] 2 Qd R 476 …. 14.59
Dickenson v Waters Ltd (1931) 31 SR (NSW) 593 …. 3.51
Dillingham Constructions Pty Ltd v Steel Mains Pty Ltd (1975) 132 CLR 323; 6 ALR 171 …. 21.17
Dimmock v Hallett (1866) LR 2 Ch App 21 …. 19.5
Dininis v Kaehne [1982] 29 SASR 118 …. 15.39
Dingle v Associated Newspapers Ltd [1964] AC 371; [1962] 3 WLR 229 …. 23.121
Dixon v Bell (1816) 1 Stark 87; 171 ER 475 …. 9.121
— v Davies (1982) 17 NTR 31 …. 15.125
— v Western Australia [1974] WAR 65 …. 9.86
Dobler v Halverson (2007) 70 NSWLR 151 …. 11.72, 13.83
Dobson v Thames Water Utilities Ltd [2011] EWHC 3253 …. 25.25
Dodwell v Burford (1669) 1 Mod 24; 86 ER 703 …. 3.5
Doe v Australian Broadcasting Corporation [2007] VCC 281 …. 7.27
Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia [1986] VR 383 …. 25.47
Domachuk v Feiner (NSWCA, Sheller JA, Giles and Simos AJJA, BC9606851, 28 November 1996,
unreported) …. 25.25
Dominion Natural Gas Co Ltd v Collins [1909] AC 640 …. 9.123
Donaldson v Broomby (1982) 40 ALR 525 …. 3.64
— v Natural Springs Australia Ltd [2015] FCA 498 …. 24.5, 24.48
Donnelly v Joyce [1974] QB 454; [1973] 3 All ER 475 …. 15.61, 15.89, 15.90
Donoghue v Stevenson [1932] AC 562 …. 1.41, 1.42, 1.62, 8.10, 8.11, 9.3, 9.9, 9.23, 9.119, 9.121, 9.122,
9.123, 9.124, 9.125, 9.127, 10.5, 10.8, 10.21, 10.26, 10.28, 10.30, 10.41, 10.90, 10.137, 19.10, 19.12,
19.13, 25.93
Doodeward v Spence (1908) 6 CLR 406; 15 ALR 105 …. 5.3
Dorman v Horscroft (1980) 24 SASR 154 …. 26.12, 26.33
D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; 214 ALR 92 …. 9.114, 18.41, 19.17
Doubleday v Kelly [2005] NSWCA 151 …. 11.32, 11.44, 13.11, 13.54, 13.68
Dougherty v Chandler (1946) 46 SR (NSW) 370 …. 23.56
Douglas Valley Finance Co Ltd v S Hughes (Hirers) Ltd [1969] 1 QB 738 …. 5.53
Douglass v Lewis (1982) 30 SASR 50 …. 23.25
Doust v Godbehear (1925) 28 WALR 59 …. 24.41
Doval v Anka Builders Pty Ltd (1992) 28 NSWLR 1 …. 11.109
Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; 201 ALR 139 …. 9.124, 11.16, 11.65, 11.69
Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; 194 ALR 433 …. 22.6, 22.23, 22.24, 22.75, 22.78
Dowling v Colonial Mutual Life Assurance Society Ltd (1915) 20 CLR 509 …. 18.43
Downing v WIN Television (NSW) Pty Ltd (No 2) [2011] NSWSC 563 …. 4.53
Doyle v Olby (Ironmongers) Ltd [1969] 2 QB 158 …. 19.84
Draper v British Optical Association [1938] 1 All ER 115 …. 15.2
— v Hodder [1972] 2 QB 556 …. 26.5, 26.29
— v Trist (1939) 56 RPC 429; [1939] 3 All ER 513 …. 24.30
Dresna Pty Ltd v Misu Nominees Pty Ltd (2004) ATPR 42–013; [2004] FCAFC 169 …. 24.62, 24.65
Drexel London (a firm) v Gove (Blackman) [2009] WASCA 181 …. 18.28
Drinkwater v Howarth [2006] NSWCA 222 …. 11.37, 11.44
Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155 …. 11.91
Duffy v Google Inc [2015] SASC 170 …. 22.78, 22.92
— v Google Inc (No 2) [2015] SASC 206 …. 23.122
Duke of Brunswick v Harmer (1849) 14 QB 185; 117 ER 75 …. 22.80
Dulieu v White [1901] 2 KB 669 …. 10.40
Duncan v Bell [1967] Qd R 425 …. 13.63
Dunlop v Woollahra Municipal Council [1982] AC 158 …. 2.26, 18.51
Dunlop Rubber Co Ltd v Dunlop [1921] 1 AC 367 …. 22.14
Dunster v Abbott [1953] 2 All ER 1572; [1954] 1 WLR 58 …. 9.9
Duyvelshaff v Cathcart & Ritchie Ltd (1973) 1 ALR 125 …. 18.34

E
E v English Province of Our Lady of Charity [2013] QB 722 …. 20.17
E Hulton & Co v Jones [1910] AC 20 …. 15.24, 22.64, 22.67, 23.4
Eade v Vogiazopoulos [1999] 3 VR 889 …. 19.8
Eagles v Orth [1975] Qd R 197 …. 13.19, 13.28
Earl of Harrington v Derby Corporation [1905] 1 Ch 205 …. 25.76
Earl of Shrewsbury’s case (1610) Co Rep 466; 77 ER 798 …. 25.94
East v Maurer [1991] 2 All ER 733; [1991] 1 WLR 461 …. 19.87
East Dorset District Council v Eaglebeam Ltd [2006] EWHC 2378 …. 25.85
East Suffolk Catchment Board v Kent [1941] AC 74 …. 25.84
Eastern Distributors Ltd v Goldring [1957] 2 QB 600 …. 5.54
Easther v Amaca Pty Ltd [2001] WASC 328 …. 15.104
Eather v Jones [1974] 2 NSWLR 19; (1975) 6 ALR 220 …. 26.5
Eatock v Bolt (2011) 197 FCR 261; 283 ALR 505 …. 23.1
Eaves v Donelly [2011] QDC 207 …. 3.82, 3.84
EB v Order of the Oblates of Mary Immaculate in the Province of British Columbia [2005] 3 SCR 45 ….
20.41
Ebbels v Rewell [1908] VLR 261 …. 4.7
Edgington v Fitzmaurice (1885) 29 Ch D 459 …. 19.6, 19.69, 19.80
Edwards v Noble (1971) 125 CLR 296 …. 9.57, 11.96
— v Railway Executive [1952] AC 737 …. 9.9
— v Rawlins [1924] NZLR 333 …. 26.25
— v Sims Ky 791, 24 SW (2d) 619 (1929) …. 4.17
Egan v State Transport Authority (1982) 31 SASR 481 …. 5.94, 6.64, 15.19
Egger v Viscount Chelmsford [1965] 1 QB 248; [1964] 3 All ER 406 …. 23.56
Elders Trustee & Executor Co Ltd v EG Reeves Pty Ltd (1987) 78 ALR 193 …. 19.106
Electrical, Electronic, Telecommunication and Plumbing Union v Times Newspapers Ltd [1980] QB
585 …. 22.86
Electrochrome Ltd v Welsh Plastics Ltd [1968] 2 All ER 205 …. 19.1
Ellis v Home Office [1953] 2 All ER 149 …. 9.83, 9.85
— v Loftus Iron Co (1874) LR 10 CP 10 …. 26.25
— v McGowan (NSWSC, Master Allen, 15 November 1977, unreported) …. 24.79
— v Wallsend District Hospital (1989) 17 NSWLR 553 …. 9.101, 20.69
Elston v Dore (1982) 149 CLR 480 …. 25.1, 25.2, 25.38
Elvin & Powell Ltd v Plummer Roddis Ltd (1933) 50 TLR 158 …. 5.46
Elwes v Brigg Gas Co (1886) 33 Ch D 562 …. 4.17, 4.18, 5.15, 5.37
Emcorp Pty Ltd v Australian Broadcasting Corporation [1988] 2 Qd R 169 …. 7.22
Emerald Construction Co Ltd v Lowthian [1966] 1 All ER 1013; [1966] 1 WLR 691 …. 24.44, 24.47
Emmett v Manning [1985] 40 SASR 297 …. 9.61
Endeavour Energy v Precision Helicopters Pty Ltd [2015] NSWCA 169 …. 11.44
Enever v R (1906) 3 CLR 969 …. 20.20
Entick v Carrington (1765) 19 St Tr 1029; 95 ER 807 …. 4.2
Environment Agency v Empress Car Co (Abertillery) Ltd [1998] UKHL 5; [1999] 2 AC 22 …. 12.88
Erickson v Bagley [2015] VSCA 220 …. 11.38
Erlich v Leifer [2015] VSC 499 …. 20.45, 20.46
Erven Warnink BV v J Townend & Sons (Hull) Ltd [1979] AC 731 …. 24.7, 24.15
Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (Reg) (1997) 188 CLR 241; 142 ALR 750
…. 1.57, 9.94, 19.29, 19.34, 19.43, 19.45
Essendon Corporation v McSweeney (1914) 17 CLR 524 …. 25.84
Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218 …. 4.15, 25.15, 25.63, 25.90, 25.99
Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443 …. 22.39, 23.101
— v Australian Consolidated Press Ltd (NSWSC, Hunt J, 11 March 1993, unreported) …. 23.101
Evans v Balog; Evans v Progress & Securities Pty Ltd [1976] 1 NSWLR 36 …. 4.57, 4.58, 15.46, 25.73,
25.74
— v London Hospital and Medical College [1981] 1 All ER 715 …. 7.13
— v Port of Brisbane Authority (1992) Aust Torts Reports ¶81-181 …. 13.105
— v Walton (1867) LR 2 CP 615 …. 17.26
Evatt v Mutual Life & Citizens Assurance Co Ltd (1967) 69 SR (NSW) 50 …. 19.15
Everett v Ribbands [1952] 2 QB 198 …. 7.15
Everitt v Martin [1953] NZLR 298 …. 5.28
Exchange Hotel v Murphy [1947] SASR 112 …. 2.7, 3.16
Exchange Telegraph Co Ltd v Gregory & Co [1896] 1 QB 147 …. 24.49, 24.55

F
F v R (1983) 33 SASR 189 …. 11.77
F (Mental Patient: Sterilisation), Re [1990] 2 AC 1 …. 3.9, 3.11, 6.13, 6.44
Fabbri v Morris [1947] 1 All ER 315 …. 25.89
Fabian v Welsh [1999] QCA 365 …. 26.35
Fabre v Arenales (1992) 27 NSWLR 437 …. 13.74
Facton Ltd v Rifai Fashions Pty Ltd (2012) 287 ALR 199 …. 24.32
Fagan v Metropolitan Commissioner of Police [1969] 1 QB 439 …. 3.32
FAI General Insurance Co Ltd v A R Griffiths & Sons Pty Ltd (1997) 71 ALJR 651 …. 20.87, 21.27
Fairbairn v John Fairfax & Sons Ltd (1977) 21 ACTR 1 …. 23.132
Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32; [2002] 3 All ER 305; [2002] 3 WLR 89 ….
8.20, 12.42, 12.46, 12.47, 12.48
Fairfax Media Publications Pty Ltd v Bateman (2015) 321 ALR 726 …. 22.9
— v Pedavoli (2015) 326 ALR 737 …. 22.72
Falcke v Herald & Weekly Times Ltd [1925] VLR 56 …. 23.88, 23.90
Fallas v Mourlas (2006) 65 NSWLR 418 …. 13.54, 13.68, 13.69, 13.70
Falvo v Australian Oztag Sports Association (2006) Aust Torts Reports ¶81-831 …. 13.70
Fangrove Pty Ltd v Tod Group Holdings Pty Ltd [1999] 2 Qd R 236 …. 10.116
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; 236 ALR 209 …. 3.44
Farley & Lewers Ltd v Attorney-General (NSW) (1962) 63 SR (NSW) 814 …. 25.68
Farquhar v Bottom [1980] 2 NSWLR 380 …. 22.31
Farquharson Bros & Co v C King & Co [1902] AC 325 …. 6.63
Farrington v Thomson [1959] VR 286 …. 18.51, 18.56, 18.60
Fatimi Pty Ltd v Bryant (2004) 59 NSWLR 678 …. 24.66, 24.68, 24.69, 24.71, 24.74
Fatur v IC Formwork Services Pty Ltd (2000) 155 FLR 70 …. 11.78
Faulkner v Keffalinos (1971) 45 ALJR 80 …. 12.52, 12.88
Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; 79 ALJR 1716 …. 22.31, 22.55, 22.56
Fawcett v John Fairfax Publications Pty Ltd [2008] NSWSC 139 …. 23.13
Fazlic v Milingimbi Community Inc (1982) 150 CLR 345; 38 ALR 424 …. 15.40
Feldman v A Practitioner (1978) 18 SASR 238 …. 9.111
Felton v Johnson (2000) Aust Torts Reports ¶81-559 …. 19.5, 19.79
Fennell v Robson Excavations Pty Ltd [1977] 2 NSWLR 486 …. 25.15, 25.18, 25.32, 25.53
Fenty v Arcadia Group Brands Ltd t/as Topshop [2015] All ER 157; [2015] 1 WLR 3291 …. 24.26
Ferguson v Eakin t/as Price Brent [1997] NSWCA 106 …. 5.3
— v State of Queensland [2007] QSC 322 …. 3.56, 3.61
Fernando v Commonwealth (2010) 276 ALR 586 …. 18.58
Fernwood Fitness Centre Pty Ltd v Today’s Woman Health and Fitness Pty Ltd (1998) 41 IPR 78 ….
24.24
Ffrench v Sestili (2006) 98 SASR 28 …. 20.39
Fick v Groves [2010] QSC 89 …. 19.28, 19.38, 19.49, 19.54, 19.57
Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473 …. 24.43, 24.45, 24.48
Filburn v People’s Palace & Aquarium Co Ltd (1890) 25 QBD 258 …. 26.4, 26.10
Finch v Rogers [2004] NSWSC 39 …. 12.60
Finesky Holdings Pty Ltd v Minister for Transport for Western Australia (2002) 26 WAR 368 …. 4.51,
4.52, 5.4
Fire and All Risks Insurance Co Ltd v Callinan (1978) 140 CLR 427; 21 ALR 375 …. 15.145
Fischer v Stuart (1979) 25 ALR 336 …. 26.10
Fish Steam Laundry Pty Ltd v Col Johnson Electrics Pty Ltd [1992] 2 Qd R 585 …. 4.55, 25.73, 25.74
Fitter v Veal (1701) 12 Mod 542; 88 ER 1506 …. 15.33
Fitzgerald v Firbank [1897] 2 Ch 96 …. 4.12
— v Hill (2008) 51 MVR 55 …. 9.73
— v Penn (1954) 91 CLR 268 …. 11.90, 11.98, 13.19
Fitzpatrick v Walter E Cooper Pty Ltd (1935) 54 CLR 200 …. 11.102, 11.103, 11.104
Fitzwilliam v Beckman [1978] Qd R 398 …. 3.85, 15.11
Flamingo Park Pty Ltd v Dolly Dolly Creations Pty Ltd (1986) 65 ALR 500; 6 IPR 431 …. 24.32
Fletcher v Nextra Australia Pty Ltd [2015] FCAFC 52 …. 22.96
Flemming v Gibson (2001) 34 MVR 40 …. 14.32
Flight Centre Ltd v Louw (2010) 78 NSWLR 656 …. 10.46
Florida Hotels Pty Ltd v Mayo (1965) 113 CLR 588 …. 11.71, 13.81
Flower & Hart (a firm) v White Industries (Qld) Pty Ltd (1999) 87 FCR 134 …. 18.47
— v — (2001) 109 FCR 280 …. 7.18
Flowfill Packaging Machines Pty Ltd v Fytore Pty Ltd (1993) Aust Torts Reports ¶81-244 …. 5.48, 5.49,
5.63, 5.90
Fontin v Katapodis (1962) 108 CLR 177 …. 3.44, 6.30, 6.31, 6.35, 6.60
Forde v Skinner (1830) 4 C & P 239; 172 ER 687 …. 3.5
Forrest v Chlanda [2012] NTSC 14 …. 23.48, 23.124
Forrester v Tyrell (1893) 9 TLR 257 …. 22.17
Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 …. 15.2
— v Lawson (1826) 3 Bing 452 …. 22.86
Fortron Automotive Treatments Pty Ltd v Jones (No 3) [2011] FMCA 467 …. 24.51
Fortuna Seafoods Pty Ltd v The Ship ‘Eternal Wind’ [2008] 1 Qd R 429 …. 10.86, 10.87, 10.88, 10.89,
10.93, 10.95
Fouldes v Willoughby (1841) 8 M & W 540; 151 ER 1153 …. 5.20, 5.40
Fournier v Canadian National Railway Co [1927] AC 167 …. 15.36
Fowler v Hollins (1872) LR 7 QB 616 …. 5.51
— v Lanning [1959] 1 QB 426 …. 2.6, 2.22
Fox v Hack [1984] 1 Qd R 391 …. 11.78, 11.79
— v Wood (1981) 148 CLR 438 …. 15.137
Francis v Cockrell; Maclennan v Segar [1917] 2 KB 325 …. 9.9
— v Lewis [2003] NSWCA 152 …. 11.78
— v Whatson [1994] 2 Qd R 584 …. 19.63
Fraser v Booth (1949) 50 SR (NSW) 113 …. 25.52
French v QBE Insurance (Australia) Ltd (2011) 58 MVR 214 …. 9.64, 12.41, 12.60, 16.33, 16.44
— v Triple M Melbourne Pty Ltd [2008] VSC 553 …. 23.88
Freudhofer v Poledano [1972] VR 287 …. 15.121
Froom v Butcher [1976] QB 286 …. 13.20
Frost v Warner (2002) 209 CLR 509; 186 ALR 1 …. 20.58
Fugro Spatial Solutions Pty Ltd v Cifuentes [2011] WASCA 102 …. 10.25
Fuller v New South Wales Department of School Education and Training (2004) Aust Torts Reports
¶81-756 …. 9.41
— v Wilson (1842) 3 QB 58 …. 19.65

G
Gaba Formwork Contractors Pty Ltd v Turner Corporation Ltd (1991) 32 NSWLR 175 …. 5.90, 5.94
Gagner Pty Ltd t/as Indochine Café v Canturi Corporation Pty Ltd (2009) 262 ALR 69 …. 15.47
Gala v Preston (1991) 172 CLR 243; 100 ALR 29 …. 10.13, 13.74, 25.101
Galashiels Gas Co Ltd v O’Donnell [1949] AC 275 …. 18.29
Galea v Gillingham [1987] 2 Qd R 365 …. 26.30
Gales Holdings Pty Ltd v Tweed Shire Council [2011] NSWSC 1128 …. 15.10
— v — (2013) 85 NSWLR 514 …. 25.53
Gallagher v McClintock [2014] QCA 224 …. 4.29
Gamser v The Nominal Defendant (1977) 136 CLR 145 …. 15.151
Gannon v Gray [1973] Qd R 411 …. 15.117
Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR (NSW) 171 …. 23.85, 23.86
Garratt v Dailey (1955) 279 P 2d 1091 …. 3.5
Gartner v Kidman (1962) 108 CLR 12 …. 25.23, 25.46
Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1; 63 ALR 600 …. 19.61, 19.84, 19.111
Gatward v Alley (1940) 40 SR NSW 174 …. 5.5
Gaunt v Fynney (1872) LR 8 Ch App 8 …. 25.52
Gedbury Pty Ltd v Michael David Kennedy Autos [1986] 1 Qd R 103 …. 5.98
Geddis v Proprietors of Bann Reservoir (1878) 3 App Cas 430 …. 6.50, 25.56
General and Finance Facilities Ltd v Cook’s Cars (Romford) Ltd [1963] 1 WLR 644 …. 5.90, 5.91, 5.100,
5.101
General Constructions Pty Ltd v Peterson (1962) 108 CLR 251 …. 18.13
General Engineering Ltd v Kingston and St Andrew Corporation [1989] 1 WLR 69 …. 20.38
Gent-Diver v Neville [1953] St R Qd 1 …. 13.20, 13.65
George v Webb [2011] NSWSC 1608 …. 21.42
Georgeski v Owners Corporation SP49833 (2004) 62 NSWLR 534 …. 4.9
Georgieff v Athans (1981) 26 SASR 412 …. 9.92
Gerard v Hope [1965] Tas SR 15 …. 3.69, 6.55
Gershman v Manitoba Vegetable Producers’ Marketing Board (1977) 69 DLR (3d) 114 …. 24.42
Gessey v Morrison (1995) 23 MVR 103 …. 15.86
Gett v Tabet (2009) 254 ALR 504 …. 10.150
Geyer v Downs (1977) 138 CLR 91; 17 ALR 408 …. 9.71, 9.72
Giannarelli v Wraith (1988) 165 CLR 543; 81 ALR 417 …. 9.111, 9.112, 9.114, 19.17
Gianni Versace SpA v Monte (2002) 119 FCR 349 …. 22.99
Gibbs v Rea [1998] AC 786 …. 7.16
Gifford v Dent (1926) 25 WN 33 …. 4.6
— v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269; 198 ALR 100 …. 10.28, 10.30, 10.44, 10.47,
10.54, 10.56, 10.63, 10.65, 10.75, 12.17, 15.100
Gilchrist, Watt & Cunningham v Logan [1927] St R Qd 185 …. 6.47
Giller v Procopets (2008) 24 VR 1 …. 7.4, 7.6, 7.26
Gillick v West Norfolk & Wisbech Area Health Authority [1986] AC 112 …. 6.13, 6.19, 6.22
Ginty v Belmont Building Supplies Ltd [1959] 1 All ER 414 …. 18.22
Giumelli v Johnston (1991) Aust Torts Reports ¶81-085 …. 6.7
Glad Retail Cleaning Pty Ltd v Alvarenga (2013) 86 NSWLR 191 …. 11.63, 13.94
Glanville v Sutton [1928] 1 KB 571 …. 26.6, 26.8
Glasgow Corporation v Muir [1943] AC 448 …. 11.4
Glass v Hollander (1935) 35 SR (NSW) 304 …. 5.44
Glenmont Investments Pty Ltd v O’Loughlin (2000) 79 SASR 185 …. 15.49
Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82; 55 ALR 25 …. 19.106, 24.36
Goddard Elliott (a firm) v Fritsch [2012] VSC 87 …. 11.15
Godhard v James Inglis & Co Ltd (1904) 2 CLR 78 …. 22.74
Goffin v Donnelly (1881) 6 QBD 307 …. 23.20
Gold v Essex County Council [1942] 2 KB 293 …. 20.18
Goldman v Hargrave (1966) 115 CLR 458; [1967] 1 AC 645 …. 11.61, 25.35, 25.52, 25.93
Goldsbrough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524 …. 23.83
Google Inc v Australian Competition and Consumer Commission (2013) 294 ALR 404 …. 19.98
Gordon v Tamworth Jockey Club Inc (2003) Aust Torts Reports ¶81-698 …. 9.25
Gorringe v Transport Commission (Tas) (1950) 80 CLR 357 …. 10.146
Gorris v Scott (1874) LR 9 Ex 125 …. 18.24
Goss v Nicholas [1960] Tas SR 133 …. 3.69, 6.33
Gottlieb v Gleiser [1958] 1 QB 267n …. 17.13
Gould v Vaggelas (1985) 157 CLR 215; 62 ALR 527 …. 15.146, 19.68, 19.81, 19.83
Government Insurance Office (NSW) v Best (1993) Aust Torts Reports ¶81-210 …. 11.104, 12.53
— v Mackie (1990) Aust Torts Reports ¶81-053 …. 15.66
— v Rosniak (1992) 27 NSWLR 665 …. 15.131
— v Sharah (1993) 19 MVR 279 …. 11.82
Govic v Boral Australian Gypsum Ltd [2015] VSCA 130 …. 18.19
Gowling v Mercantile Mutual Insurance Co Ltd (1980) 24 SASR 321 …. 15.73, 15.94
Graff Bros Estates Ltd v Rimrose Brook Joint Sewerage Board [1953] 2 QB 318 …. 25.18
Graham v Baker (1961) 106 CLR 340 …. 15.54, 15.68, 15.135
— v Morris [1974] Qd R 1 …. 4.20
— v Royal National Agricultural and Industrial Association of Queensland [1989] 1 Qd R 624 …. 26.38
— v Voigt (1989) Aust Torts Reports ¶80-296 …. 5.87
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; 194 ALR 337 …. 9.123, 10.15, 10.22, 10.28,
10.39, 10.137, 10.139, 11.65
Grainger v Hill (1838) 4 Bing NC 212; 132 ER 160 …. 18.42, 18.45
Gran Gelato v Richcliff (Group) Ltd [1992] 2 WLR 867 …. 9.104
Grange Motors (Cwmbran) Ltd v Spencer [1969] 1 WLR 53 …. 19.1, 19.4
Grant v Australian Knitting Mills Ltd [1936] AC 85 …. 8.11, 9.125
— v YYH Holdings Pty Ltd [2012] NSWCA 360 …. 5.63
Grant Pastoral Co Pty Ltd v Thorpe’s Ltd (1953) 54 SR (NSW) 129 …. 25.23
Gray v Jones [1939] 1 All ER 798 …. 22.16
— v Motor Accident Commission (1998) 196 CLR 1; 158 ALR 485 …. 1.36, 2.10, 15.20
Gray by her tutor Gray v Richards (2014) 253 CLR 660; 313 ALR 579 …. 15.131
Great Lakes Shire Council v Dederer; Roads and Traffic Authority of New South Wales v Dederer
(2006) Aust Torts Reports ¶81-860 …. 11.52, 11.59
Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165 …. 22.36
Green v Button (1835) 2 CM & R 707 …. 24.38
Gregg v Scott [2005] 2 WLR 268 …. 12.20
Grego v Mt Isa Mines Ltd [1972] QWN 33 …. 15.135
Gregory v New South Wales [2009] NSWSC 559 …. 9.71
Grehan v Kann [1948] QWN 40 …. 3.37, 3.38
Greig v Greig [1966] VR 376; [1966] ALR 989 …. 4.61
— v Insole [1978] 3 All ER 449; [1978] 1 WLR 302 …. 24.38, 24.39, 24.41, 24.50, 24.55
Gribben v Woree Caravan Park and Motels [1970] Qd R 420 …. 9.9
Griffiths v Benn (1911) 27 TLR 346 …. 22.86
— v Doolan [1959] Qd R 30 …. 13.19
— v Haines [1984] 3 NSWLR 653 …. 20.20
— v Kerkemeyer (1977) 139 CLR 161; 15 ALR 387 …. 15.89, 15.90, 15.93, 15.101, 15.102, 15.104, 16.29
Grima v RFI (Aust) Pty Ltd [2015] NSWSC 332 …. 21.24
Grincelis v House (2000) 201 CLR 321; 173 ALR 564 …. 15.146
Groom v Crocker [1939] 1 KB 194 …. 1.29, 9.91
Gross v Lewis Hillman Ltd [1970] Ch 445 …. 19.78
Grosse v Purvis (2003) Aust Torts Reports ¶81-706 …. 7.25, 7.26, 7.27
Grosvenor Hotel Company v Hamilton [1894] 2 QB 836 …. 25.71
Groves v Commonwealth (1982) 150 CLR 113; 40 ALR 193 …. 20.19
— v Lord Wimborne [1898] 2 QB 402 …. 9.48, 18.2, 18.13, 18.17
— v United Pacific Transport Pty Ltd [1965] Qd R 62 …. 15.150
Grubb v Bristol United Press Ltd [1963] 1 QB 309 …. 22.58
Grundt v Great Boulder Gold Mines Pty Ltd (1937) 59 CLR 641 …. 4.18
Gugiatti v Servite College Council Inc [2004] WASCA 5 …. 9.72
Guildford Rugby League Football & Recreational Club Ltd v Coad (2001) Aust Torts Reports ¶81-623
…. 11.42
Guise v Kouvelis (1947) 74 CLR 102 …. 23.36, 23.40
Gunning v Fellows (1997) 25 MVR 97 …. 11.31
Gutkin v Gutkin [1983] 2 Qd R 764 …. 15.94
Gwinnett v Day [2012] SASC 43 …. 5.52
GWK Ltd v Dunlop Rubber Co Ltd (1926) 42 TLR 376 …. 24.51

H
H v New South Wales [2009] NSWDC 193 …. 9.71
— v Royal Alexandra Hospital for Children (1990) Aust Torts Reports ¶81-000 …. 11.17, 11.56
Haber v Walker [1963] VR 339 …. 12.74, 12.76, 16.12, 16.13
Habib v Commonwealth (No 2) (2009) 175 FCR 350; 254 ALR 250 …. 24.75, 24.77
— v Nationwide Pty Ltd (No 2) [2010] NSWCA 291 …. 15.18
Hackshaw v Shaw (1984) 155 CLR 614; 56 ALR 417 …. 2.9, 2.22, 3.18, 13.76
Haddon v Lynch [1911] VLR 5 …. 25.17
— v — [1911] VLR 230 …. 25.45
Hadzigeorgiou v O’Sullivan [1983] 1 Qd R 55 …. 15.144
Hahn v Conley (1971) 126 CLR 276 …. 1.24, 9.78
Haines v Bendall (1991) 172 CLR 60; 99 ALR 385 …. 15.25, 15.26
Hale v Brooklands Auto Racing Club [1933] 1 KB 205 …. 13.66
— v Cramer (2003) 40 MVR 477 …. 15.135
— v Foneca [1985] WAR 309 …. 3.31
— v Queensland Newspapers Pty Ltd [2002] 1 Qd R 376 …. 22.68
— v Victorian Railway Commissioner (1953) 87 CLR 529 …. 11.80
— v WorkCover Queensland [2015] 2 Qd R 88 …. 16.49
Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84 …. 24.89, 24.96
Halliday v Nevill (1984) 155 CLR 1; 57 ALR 331 …. 4.2, 4.27, 4.28, 6.6, 6.9
Hallowell v Nominal Defendant (Qld) [1983] 2 Qd R 266 …. 13.20, 13.28
Halsey v Esso Petroleum Co Ltd [1961] 2 All ER 145; [1961] 1 WLR 683 …. 25.15, 25.33, 25.43, 25.45
Hamcor Pty Ltd v Queensland [2014] QSC 224 …. 18.33
— v — [2015] QCA 183 …. 18.33
Hamilton v Long [1905] 2 IR 552 …. 17.25
— v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 …. 1.43, 9.32
Hammersmith and City Railway Co v Brand (1869) LR 4 HL 171 …. 25.56
Hampton v BHP Billiton Minerals Pty Ltd (No 2) [2012] WASC 285 …. 4.7
Hampton Court Ltd v Crooks (1957) 97 CLR 367 …. 11.106
Hancock v Nominal Defendant [2002] 1 Qd R 578 …. 10.55, 10.56, 10.62
— v Queensland [2002] QSC 027 …. 11.21
Handcock v Baker (1800) 2 Bos & P 260; 126 ER 1270 …. 3.70
Hanlon v Hanlon [2006] TASSC 1 …. 16.33, 16.34, 16.37
Hannah Louis Group Pty Ltd t/as Maxum Transport v Maxum Taxi Trucks Pty Ltd [2011] NSWSC 291
…. 24.23
Hanrahan v Ainsworth (1990) 22 NSWLR 73 …. 18.46, 18.50
Hansen v Gloucester Developments Pty Ltd [1992] 1 Qd R 14 …. 4.58, 15.46
Hansen Beverage Co v Bickfords (Australia) Pty Ltd (2008) 251 ALR 1 …. 24.9, 24.10, 24.19, 24.23,
24.35
Hanson v Radcliffe Urban District Council [1922] 2 Ch 490 …. 15.4
Hanson-Young v Bauer Media Ltd [2013] NSWSC 1306 …. 22.39
Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31; 292 ALR 192 …. 23.5, 23.33, 23.43, 23.44, 23.45,
23.46
Hardie Finance Corporation Pty Ltd v Ahern (No 3) [2010] WASC 403 …. 10.94, 10.105, 10.106, 24.5
Hardie (Qld) Employees Credit Union Ltd v Hall Chadwick & Co [1980] Qd R 362 …. 9.92
Harding v Lithgow Municipal Council (1937) 57 CLR 186 …. 16.10
Hardware Services Pty Ltd v Primac Association Ltd [1988] 1 Qd R 393 …. 9.104
Hardy v Ryle (1829) 9 B & C 603; 109 ER 224 …. 14.13
Hargrave v Goldman (1963) 110 CLR 40 …. 25.2, 25.27, 25.52, 25.93
Harmer v Hare (2011) 59 MVR 1 …. 13.26
— v — [2012] HCASL 21 …. 13.26
Harper v G N Haden & Sons Ltd [1933] Ch 298 …. 25.88, 25.89
Harris v Bulldogs Rugby League Club Ltd (2006) Aust Torts Reports ¶81-838 …. 11.68
— v Carnegie’s Pty Ltd [1917] VLR 95 …. 25.33
Harrison v Bush (1855) 5 E & B 344; 119 ER 509 …. 23.40
— v Melhem (2008) 72 NSWLR 380 …. 15.100
— v Thornborough (1713) 10 Mod 196; 88 ER 691 …. 22.52
Harriton v Stephens (2004) 59 NSWLR 694 …. 8.5, 12.5
— v — (2006) 226 CLR 52; 226 ALR 391 …. 1.10, 1.11, 1.16, 1.25, 1.35, 9.77, 9.99, 10.2, 10.5, 10.15,
10.28, 12.1, 12.7, 12.11, 12.12
Harvey v PD (2004) 59 NSWLR 639 …. 9.100, 12.86
— v Shire of St Arnaud (1879) 5 VLR 315 …. 25.80
Haseldine v Daw [1941] 2 KB 343 …. 9.123, 11.20
Haskins v Commonwealth (2011) 244 CLR 22; 279 ALR 434 …. 3.72
Hasselblad (GB) Ltd v Orbinson [1985] QB 475 …. 23.25
Havyn Pty Ltd v Webster (2005) 12 BPR 22,837 …. 19.106
Hawke v Tamworth Newspaper Co Ltd [1983] 1 NSWLR 699 …. 23.81
Hawkins v Clayton (1988) 164 CLR 539; 78 ALR 69 …. 1.29, 9.91, 9.94, 9.107, 10.99, 14.23, 14.26
— v Coulsdon and Purley Urban District Council [1954] 1 QB 319 …. 9.9
Hay or Bourhill v Young [1943] AC 92; [1942] 2 All ER 396 …. 9.62, 10.8, 10.41, 12.1
Haynes v Harwood [1935] 1 KB 146 …. 12.1, 12.78, 13.98
Haystead v Chief Constable of Derbyshire [2000] 3 All ER 890 …. 3.5
Haythorpe v Rae [1972] VR 633 …. 5.100
Hayward v Thompson [1982] 1 QB 47 …. 22.70, 22.72
Healing (Sales) Pty Ltd v Inglis Electrix Pty Ltd (1968) 121 CLR 584 …. 4.26, 5.42, 5.76, 5.89
Heartcheck Australia Pty Ltd v Channel 7 Sydney Pty Ltd [2007] NSWSC 555 …. 22.85
Heather, Re; Director-General, Department of Community Services v M [2003] NSWSC 532 …. 6.20
Heaven v Pender (1883) 11 QBD 503 …. 8.10, 9.123
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 …. 1.43, 10.79, 10.81, 19.10, 19.11, 19.12,
19.13, 19.15, 19.19, 19.21, 19.44, 19.46, 19.51, 19.79
Hegarty v Shine (1878) 14 Cox CC 124 …. 6.10
Hemmings v Stokes Poges Golf Club [1920] 1 KB 720 …. 4.49
Henderson v Henry E Jenkins & Sons [1970] AC 282 …. 11.111
— v Radio Corporation Pty Ltd [1969] RPC 218 …. 24.11, 24.13, 24.25, 24.33
Henly v Mayor of Lyme (1828) 5 Bing 91; 130 ER 995 …. 18.60
Henry v Thompson [1989] 2 Qd R 412 …. 3.79, 3.84
— v TVW Enterprises Ltd (1990) 3 WAR 474 …. 22.46, 22.66
Henry Berry & Co Pty Ltd v Rushton [1937] St R Qd 109 …. 5.16, 6.45
Henwood v Municipal Tramways Trust (SA) (1938) 60 CLR 438 …. 13.76
Henville v Walker (2001) 206 CLR 459; 182 ALR 37; [2001] HCA 52 …. 12.58, 19.57, 19.112
Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 …. 22.88
Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254 …. 23.118
— v Popovic (2003) 9 VR 1 …. 23.5
Hercules v Phease [1994] 2 VR 411 …. 23.25, 23.28
Herd v Weardale Steel Coke and Coal Co Ltd [1915] AC 67 …. 3.63
Hewitt v Bonvin [1940] 1 KB 188 …. 20.11, 20.54
Heydon v NRMA Ltd (2000) 51 NSWLR 1 …. 9.92, 9.103, 9.107, 11.14
Heywood v Miller [2005] ACTSC 4 …. 9.63
Higgins v William Inglis & Son Pty Ltd [1978] 1 NSWLR 649 …. 26.7, 26.14
Hill v Cooke [1958] SR (NSW) 49 …. 15.14
— v Higgins [2012] NSWSC 270 …. 4.52
— v Reglon Pty Ltd [2007] NSWCA 295 …. 5.11, 5.44
— v Richards [2011] NSWCA 291 …. 11.68
Hill (t/as R F Hill & Associates) v Van Erp (1997) 188 CLR 159; 142 ALR 687 …. 9.94, 9.106, 10.14,
10.21, 10.22, 10.28, 10.98, 10.99, 10.100, 10.102, 10.103, 10.104, 10.105, 10.106, 19.18, 19.45
Hillesden Securities Ltd v Ryjack Ltd [1983] 1 WLR 959 …. 5.90
Hiort v Bott (1847) LR 9 Ex 86 …. 5.39, 5.46
— v London & North Western Railway Co (1879) 4 Ex D 188 …. 5.39
Hird v Gibson [1974] Qd R 14 …. 12.68, 17.11
Hirst v Nominal Defendant [2005] 2 Qd R 133 …. 13.18
Hisgrove v Hoffman (1981) 29 SASR 1 …. 15.40
Hoad v Scone Motors Pty Ltd [1977] 1 NSWLR 88 …. 15.47
Hoath v Connect Internet Services Pty Ltd (2006) 229 ALR 566 …. 5.3, 24.10
Hobbelen v Nunn [1965] Qd R 105 …. 15.136
Hobbs v CT Tinling & Co Ltd [1929] 2 KB 1 …. 23.135
— v Petersham Transport Co Pty Ltd (1971) 124 CLR 220 …. 5.9, 11.111
— v Tinling [1929] 1 KB 1 …. 23.134
Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652 …. 22.50, 23.48
Hocking v Bell (1947) 75 CLR 125 …. 11.91, 11.93
Hodges v Frost (1984) 53 ALR 373 …. 15.152
Hoffman v Boland (by her tutor Boland) [2013] NSWCA 158 …. 9.77
Hogan v A G Wright Pty Ltd [1963] Tas SR 44 …. 4.59
— v Koala Dundee Pty Ltd [1988] 83 ALR 187 …. 24.33
Hogan (an infant by his next friend Williams) v Gill (1992) Aust Torts Reports ¶81-182 …. 2.17, 3.3
Holding v Jennings [1979] VR 289 …. 23.18, 23.20
Hollier v Rambler Motors (AMC) Ltd [1972] 2 QB 71; [1972] 1 All ER 399 …. 5.9
Hollins v Fowler (1875) LR 7 HL 757 …. 5.41, 5.53, 5.55
Hollis v Vabu Pty Ltd (2001) 207 CLR 21; 181 ALR 263 …. 20.5, 20.8, 20.9, 20.14, 20.16, 20.53
Hollywood Silver Fox Farm Ltd v Emmett [1936] 2 KB 468 …. 25.52, 25.98
Holmes v Jones (1907) 4 CLR 1692 …. 19.86
— v Mather (1875) LR 10 Ex 261 …. 2.3, 13.65
Home Office v Dorset Yacht Co Ltd [1970] AC 1004 …. 9.89, 10.9, 10.33
Honey v Australian Airlines Ltd (1990) 18 IPR 185 …. 24.26
Hookey v Peterno (2009) 22 VR 362 …. 11.71
Hopper v Reeve (1817) 7 Taunt 698; 129 ER 278 …. 3.5
Horan v Ferguson [1995] 2 Qd R 490 …. 3.42
Horkin v North Melbourne Football Club Social Club [1983] 1 VR 153 …. 2.24, 6.60
Hornsby Building Information Centre Pty Ltd v Building Information Centre Ltd (1978) 140 CLR 216
…. 24.100
Horsfall v Thomas (1862) 1 H & C 90; 158 ER 813 …. 19.4, 19.80
Horsley v Phillips Fine Art Auctioneers Pty Ltd (1995) 7 BPR 14,360 …. 5.5
Horton v Byrne (1956) 30 ALJ 583 …. 16.35
Hosking v Runting [2005] 1 NZLR 1 …. 7.31
Hospitality Group Pty Ltd v Australian Rugby Union Ltd (2001) 110 FCR 157 …. 15.6, 24.49
Host v Bassett (1983) 48 ALR 404 …. 11.99
Hotson v East Berkshire Area Health Authority [1987] AC 750 …. 12.20, 12.45
— v Fitzgerald [1985] 1 WLR 1036 …. 9.95
Hough v London Express Newspaper Ltd [1940] 2 KB 507 …. 22.57
Houghland v R R Low (Luxury Coaches) Ltd [1962] 2 All ER 159 …. 5.69
House v Forestry Tasmania (1995) Aust Torts Reports ¶81-331 …. 11.59
Howard v Jarvis (1958) 98 CLR 177 …. 9.83, 9.85, 9.86
— v Wing [2000] TASSC 147 …. 6.30
Howard Marine and Dredging Co Ltd v A Ogden & Sons (Excavations) Ltd [1978] QB 574 …. 19.35
Howden v ‘Truth’ & ‘Sportsman’ Ltd (1937) 58 CLR 416; [1938] ALR 208 …. 23.5
Howe v Lees (1910) 11 CLR 361 …. 23.41, 23.42
Hoyts Pty Ltd v Burns (2003) 201 ALR 470; 77 ALJR 1934 …. 9.18, 9.20, 12.55
Hribar v Wells (1995) Aust Torts Reports ¶81-345 …. 9.96
Hudson v Nicholson (1839) 5 M & W 437; 151 ER 185 …. 4.47
Huet v Lawrence [1948] St R Qd 168 …. 5.72
Hughes v Lord Advocate [1963] AC 837 …. 12.64
— v SDN Children’s Services Inc [2002] NSWCA 11 …. 9.43
— v South Australia (1982) 29 SASR 161 …. 9.43
— v Tucaby Engineering Pty Ltd [2011] QSC 256 …. 13.15
Huljich v Hall [1973] 2 NZLR 279 …. 24.77
Humphries v TWT Ltd (1993) 120 ALR 693 …. 23.118, 23.122
Hungerfords v Walker (1989) 171 CLR 125; 84 ALR 119 …. 15.51
Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613; 296 ALR 3 …. 21.36
Hunter v Canary Wharf Ltd [1996] 1 All ER 482; [1996] 2 WLR 348 …. 1.11, 1.12
— v — [1997] AC 655 …. 25.7, 25.31, 25.38, 25.44, 25.72
Hunter and New England Area Health Service v A (2009) 74 NSWLR 88 …. 3.14, 6.22, 6.25, 6.26
Hunter and New England Local Health District v McKenna; Hunter and New England Local Health
District v Simon (2014) 253 CLR 270; 314 ALR 505 …. 10.28, 10.71
Hunter Area Health Service v Presland (2005) 63 NSWLR 22 …. 12.84
Hunter BNZ Finance Ltd v ANZ Banking Group Ltd [1990] VR 41 …. 5.31, 5.76, 5.88
— v CG Maloney Pty Ltd (1989) 18 NSWLR 420 …. 5.3
Husher v Husher (1999) 197 CLR 138; 165 ALR 384 …. 15.70
Hutchins v Maughan [1947] VLR 131 …. 2.2, 2.13, 5.18
Hutchinson v York, Newcastle & Berwick Railway Company (1850) 5 Exch 343; 155 ER 150 …. 9.28
Huth v Huth [1915] 3 KB 32 …. 22.76
Hyder Consulting (Australia) Pty Ltd v Wilh Wilhelsmen Agency Pty Ltd (2002) 18 BCL 122; [2001]
NSWCA 313 …. 15.48
Hyett v Great Western Railway Co [1948] 1 KB 345 …. 12.78
Hyland v Campbell (1995) Aust Torts Reports ¶81-352 …. 9.108

I
I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109; 192 ALR 1 …. 19.111,
19.112
IBL Ltd v Coussens [1991] 2 All ER 133 …. 5.86
Illawarra Newspapers v Butler [1981] 2 NSWLR 502 …. 23.80
Illustrated Newspapers Ltd v Publicity Services (London) Ltd [1938] 1 Ch 414 …. 24.22
Imbree v McNeilly (2008) 236 CLR 510; 248 ALR 647 …. 1.57, 9.57, 9.60, 11.6, 11.23, 11.24, 11.25,
11.26, 13.50, 13.51, 13.55, 13.59, 13.65
Imperial Chemical Industries Ltd v Shatwell [1965] AC 656 …. 13.57, 18.38
Independent Oil Industries Ltd v Shell Co of Australia Ltd (1937) 37 SR (NSW) 394 …. 24.43
Indermaur v Dames (1866) LR 1 CP 274 …. 9.9
Inland Revenue Commissioners v Goldblatt [1972] Ch 498 …. 18.18
Innes v Wylie (1844) 1 Car & Kir 257; 174 ER 800 …. 3.6
Insurance Commissioner v Joyce (1948) 77 CLR 39 …. 9.60, 11.26, 13.61, 13.62
Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 3) [2003] 1 Qd R 26 ….
19.45
Inverell Municipal Council v Pennington (1993) Aust Torts Reports ¶81-234 …. 11.43
Irvin v Whitrod (No 2) [1978] Qd R 271 …. 20.20
Irvine v Talksport Ltd [2002] 2 All ER 414; 1 WLR 2355 …. 24.13
Irwin v Salvation Army (NSW) Property Trust [2007] NSWDC 266 …. 18.21

J
J & K Clothing Pty Ltd v Mahmoud [2004] NSWCA 207 …. 12.17
J T Stratford & Sons Ltd v Lindley [1965] AC 269; [1964] 3 All ER 102 …. 24.44, 24.53, 24.75, 24.80
Jaber v Rockdale City Council (2008) Aust Torts Reports ¶81-952 …. 13.70
Jack Brabham Engines Ltd v Beare [2010] FCA 872 …. 24.75
Jackson v Australian Consolidated Press Ltd [1966] 2 NSWR 775 …. 23.56
— v Harrison (1978) 138 CLR 438; 19 ALR 129 …. 13.73, 25.101
— v Jackson (1970) 2 NSWR 454 …. 15.117
— v Normanby Brick Co (1899) 1 Ch 438 …. 25.70
— v Watson & Sons [1909] 2 KB 193 …. 16.1
Jacobi v Griffiths (1999) 174 DLR (4th) 71 …. 20.41
Jaensch v Coffey (1984) 155 CLR 549; 54 ALR 417 …. 1.43, 10.12, 10.13, 10.42, 10.44, 10.48, 10.49,
10.52, 10.57, 10.61
James v ANZ Banking Group Ltd (1986) 64 ALR 347 …. 19.108
— v Commonwealth (1939) 62 CLR 339 …. 24.42
— v Oxley (1939) 61 CLR 433 …. 5.47
— v Wellington City [1972] NZLR 978 …. 26.10
James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53; 159 ALR 268 …. 21.1, 21.17, 21.18,
21.20
James Thane Pty Ltd v Conrad International Hotels Corp [1999] QCA 516 …. 9.42
Jan De Nul (UK) Ltd v AXA Royale Belge SA (formerly NV Royale Belge) [2000] 2 Lloyd’s Rep 700 ….
25.85, 25.86
Jandson Pty Ltd v Welsh [2008] NSWCA 317 …. 11.51
Janvier v Sweeney [1919] 2 KB 316 …. 7.2
Jarvis v Scrase [2000] 2 Qd R 92 …. 9.73
Jazabas Pty Ltd v City of Botany Bay Council (2000) ANZ ConvR 616 …. 19.58
Jeffrey v Honig [1999] VSC 337 …. 25.6, 25.24
Jeffrey and Curnow v Giles; Giles v Jeffrey and Curnow [2015] VSCA 70 …. 23.118
Jekos Holdings Pty Ltd v Australian Horticultural Finance Pty Ltd [1994] 2 Qd R 515 …. 19.116
Jellie v Commonwealth [1959] VR 72 …. 11.66
Jemena Gas Networks (NSW) Ltd v Mine Subsidence Board (2011) 243 CLR 558; 277 ALR 257 ….
25.19
Jennings v Hannan (No 2) (1969) 71 SR (NSW) 226 …. 20.57
Joblins v Associated Dairies Ltd [1982] AC 794 …. 12.52
Joel v Morison (1834) 6 Car & P 501; 172 ER 1338 …. 20.30
John F Goulding Pty Ltd v Victorian Railways Commissioners (1932) 48 CLR 157 …. 5.60, 5.62, 5.68,
5.69
John Fairfax & Sons Ltd v Punch (1980) 31 ALR 624 …. 22.42
John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484 …. 23.15, 23.85
— v Gacic (2007) 230 CLR 291; 235 ALR 402 …. 22.45, 22.63
— v Obeid (2005) 64 NSWLR 485 …. 22.88
— v Rivkin (2003) 201 ALR 77 …. 22.36, 22.63
— v Zunter [2006] NSWCA 227 …. 23.14
John Lewis Co Ltd v Tims [1952] AC 676 …. 3.65
John McGrath Motors (Canberra) Pty Ltd v Applebee (1964) 110 CLR 656 …. 19.4, 19.74
John Pfeiffer Pty Ltd v Canny (1981) 148 CLR 218; 36 ALR 466 …. 8.17, 18.35
Johnson v Buchanan [2012] VSC 195 …. 26.23
— v Commonwealth (1927) 27 SR (NSW) 133 …. 7.2
— v Deep Level Gold Mines of Charters Towers Ltd [1903] St R Qd 190 …. 16.10
— v Kent (1975) 132 CLR 164; 5 ALR 201 …. 25.89
— v Perez (1988) 166 CLR 351; 82 ALR 587 …. 15.25
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2003) Aust Torts Reports ¶81-692 …. 1.57, 10.28, 10.90,
10.93, 10.96
Jones v Bartlett (2000) 205 CLR 166; 176 ALR 137 …. 9.23, 20.77
— v Dapto Leagues Club Ltd [2008] NSWCA 32 …. 13.36
— v Department of Employment [1989] QB 1 …. 6.51
— v Dumbrell [1981] VR 199 …. 19.75
— v John Fairfax & Sons Ltd (1986) 4 NSWLR 466 …. 23.60, 23.62
— v Jones [1916] 2 AC 481 …. 22.16
— v — [1982] Tas R 282 …. 15.94
— v Linnett [1984] 1 Qd R 570 …. 26.5, 26.15, 26.24
— v Manchester Corporation [1952] 2 QB 852 …. 11.21
— v Schiffmann (1971) 124 CLR 303 …. 16.38
— v Shire of Perth [1971] WAR 56 …. 4.55, 4.58, 15.46, 25.74
— v Skelton [1963] 3 All ER 952; [1963] 1 WLR 1362 …. 22.11, 22.52, 22.56, 22.61
— v Stones [1999] 1 WLR 1739 …. 4.42
— v Sutton (2004) 61 NSWLR 614 …. 23.97
— v Tsige (2012) ONCA 32 …. 5.31
— v Williams (1843) 11 M & W 176; 152 ER 764 …. 25.68
— v Wright [1991] 3 All ER 88 …. 10.41
— v Wrotham Park Settled Estates [1980] AC 74; [1979] 1 All ER 286; [1979] 2 WLR 132 …. 16.45
Jones Bros (Hunstanton) Ltd v Stevens [1955] 1 QB 275 …. 17.2, 24.55
Joslyn v Berryman (2003) 214 CLR 552; 198 ALR 137 …. 11.26, 13.5, 13.8, 13.12, 13.24, 13.43, 13.47,
13.62
Joyce v Motor Surveys Ltd [1948] Ch 252 …. 24.92
Jull v Wilson & Horton [1968] NZLR 88 …. 9.123

K
Kakouris v Gibbs Burge & Co Pty Ltd (1970) 44 ALJR 384 …. 18.40
Kalo v Bristol Omnibus Co Ltd [1975] 1 WLR 1054 …. 15.73
Kars v Kars (1996) 187 CLR 354; 141 ALR 37 …. 1.57, 15.61, 15.91, 15.95
Katsilis v Broken Hill Proprietary Co Ltd (1977) 18 ALR 181; 52 ALJR 189 …. 11.97
Kavanagh v Akhtar (1998) 45 NSWLR 588 …. 12.68
Kayteal Pty Ltd v Dignan (2011) 15 BPR 29,515 …. 9.108, 9.109
Kealley v Jones [1979] 1 NSWLR 723 …. 17.10
Keefe v Marks (1989) 16 NSWLR 713 …. 9.112
— v R T & D M Spring Pty Ltd [1985] 2 Qd R 363 …. 15.151
Keen Mar Corporation Pty Ltd v Labrador Park Shopping Centre Pty Ltd (1988) ATPR ¶40-853 ….
19.116
Kelly v Alford [1988] 1 Qd R 404 …. 20.87
— v Bluestone Global Ltd (in liq) [2016] WASCA 90 …. 20.23, 20.24
Kelsen v Imperial Tobacco Co (of Great Britain and Ireland) Ltd [1957] 2 QB 334 …. 4.6, 4.20
Kemsley v Foot [1951] 2 KB 34 …. 23.78
— v — [1952] AC 345 …. 23.80
Kenny & Good Pty Ltd v MQICA (1992) Ltd (1999) 73 ALJR 901 …. 19.45
Kensington Starch & Maizena Co Ltd v Essendon and Flemington Corporation (1880) 6 VLR (L) 265
…. 25.6
Kent v Parer [1922] VLR 32 …. 5.5
— v Scattini [1961] WAR 74 …. 13.60
Kepa v Lessbrook Pty Ltd (in liq) [2012] QSC 311 …. 16.28
Keppel Bus Co Ltd v Sa’ad bin Ahmad [1974] 2 All ER 700; [1974] 1 WLR 1082 …. 20.35
Kestrel Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2001] 1 Qd R 634 …. 25.70
Kestrel Holdings Pty Ltd (ACN 009 590 265) v APF Properties Pty Ltd (ACN 095 297 019) (2009) 260
ALR 418 …. 19.45
Key v Commissioner for Railways (1941) 64 CLR 619 …. 9.34
Khorasandjian v Bush [1993] QB 727 …. 1.12, 25.7, 25.96
Kiddle v City Business Properties Ltd [1942] 1 KB 269 …. 25.101
Kidman v Page [1959] Qd R 53 …. 25.42, 25.43
King v Coupland [1981] Qd R 121 …. 14.40
— v Crowe [1942] St R Qd 288 …. 3.37, 3.38
— v Philcox (2014) 320 ALR 398 …. 10.70
Kings Cross Whisper Pty Ltd v Ray (1970) 72 SR (NSW) 339 …. 22.44
Kirby v Leather [1965] 2 QB 367 …. 14.40
Kirk v Gregory (1876) 1 Ex D 55 …. 5.20, 5.73
— v Nominal Defendant [1984] 1 Qd R 592 …. 13.19
Kirkham v Boughey [1958] 2 QB 338 …. 17.19
Kizbeau Pty Ltd v W G & B Pty Ltd (1995) 184 CLR 281 …. 19.111
KLB v British Columbia (2003) 2 SCR 403 …. 20.17
Knapp v Railway Executive [1949] 2 All ER 508 …. 18.26
Knight v Beyond Properties Pty Ltd (2007) 71 IPR 466 …. 24.6
— v — (2007) 242 ALR 586 …. 24.17
— v R (1988) 35 A Crim R 314 …. 3.22
Knott Investments Pty Ltd v Winnebago Industries Inc (2013) 211 FCR 449; 299 ALR 74 …. 24.10
Knupffer v London Express Newspaper Ltd [1944] AC 116 …. 22.64, 22.74
Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44; 214 ALR 355 …. 1.30, 9.7, 9.26, 9.35, 10.28, 10.30,
10.47, 10.48, 10.51, 10.73, 10.74
Kondis v State Transport Authority (1984) 154 CLR 672; 55 ALR 225 …. 9.47, 9.102, 20.62, 20.64, 20.65,
20.71, 20.72, 20.73, 20.78, 20.81
Kondracuik v Jackson Morgan & Sons (1988) 47 SASR 280 …. 18.40
Konskier v B Goodman Ltd [1928] 1 KB 421 …. 4.42, 4.46
Kooragang Investments Pty Ltd v Richardson & Wrench Ltd (1981) 36 ALR 142 …. 20.35
Koremans v Sweeney [1966] QWN 46 …. 15.136
Kostik v Giannakopoulos (1989) Aust Torts Reports ¶80-274 …. 15.65
Kouris v Prospector’s Motel Pty Ltd (1977) 19 ALR 343 …. 11.97
Koursk, The[1924] P 140 …. 21.5
Kraemers v Attorney-General (Tas) [1966] Tas SR 113 …. 25.15, 25.54, 25.81, 25.96, 25.99
Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536 …. 22.35, 22.36, 22.82
Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563; 69 ALJR 629 …. 19.4, 19.70, 19.74, 19.80
Kralj v McGrath [1986] 1 All ER 54 …. 15.24
Kretschmar v Queensland (1989) Aust Torts Reports ¶80-272 …. 11.67
Kriz v King [2007] 1 Qd R 327 …. 15.100, 15.102
Kruse v Lindner (1978) 19 ALR 85 …. 22.77
Kuchenmeister v Home Office [1958] 1 QB 496 …. 3.53
Kudrin v City of Mandurah [2012] WASCA 65 …. 10.130
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; 276 ALR 375 …. 9.5, 9.6, 9.7, 10.38
Ku-ring-gai Co-operative Building Society (No 12) Ltd, Re (1978) 36 FLR 134 …. 19.100
Ku-ring-gai Municipal Council v Bonnici [2002] NSWCA 313 …. 25.81
Kuru v New South Wales (2008) 246 ALR 260 …. 4.35, 6.28
Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 and 5) [2002] UKHL 19; [2002] 2 AC 883;
[2002] 3 All ER 209 …. 5.39, 5.42

L
L v Commonwealth (1976) 10 ALR 269 …. 9.86
L Shaddock & Associates Pty Ltd v Parramatta City Council (No 1) (1981) 150 CLR 225 …. 1.6, 1.57,
19.16, 19.25, 19.32, 19.40, 19.51, 19.60
Lade & Co Pty Ltd v Black [2007] QSC 385 …. 26.24
Lafranchi v Transport Accident Commission (2006) 14 VR 359 …. 11.110
Lagan Navigation Co v Lambeg Bleaching Dyeing and Finishing Co [1927] AC 226 …. 25.68
Lai v Chamberlains [2005] 3 NZLR 291 …. 9.113
Lake v Taggart (1978) 1 SR (WA) 89 …. 26.4
Lam v South Australia (2004) 234 LSJS 414; [2004] SADC 110 …. 9.89
Lamb v Cotogno (1987) 164 CLR 1; 74 ALR 188 …. 1.36, 15.20
Lamble v Howl at the Moon Broadbeach Pty Ltd [2013] QSC 244 …. 20.36
Lampert v Eastern National Omnibus Co Ltd [1954] 1 WLR 1047 …. 17.11
Lamru Pty Ltd v Kation Pty Ltd (1998) 44 NSWLR 432 …. 4.69
Lancashire Railway Co v MacNicoll (1919) 88 LJKB 601 …. 5.40
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; 145 ALR 96 …. 23.44, 23.71, 23.73,
23.75, 23.76, 23.77
Langridge v Levy (1837) 2 M & W 519; 150 ER 863 …. 19.74, 19.78
Lanphier v Phipos (1838) 8 C & P 475; 173 ER 581 …. 11.14
Lansdown v WTH Pty Ltd (1990) 10 MVR 355 …. 20.59
Laoulach v Ibrahim [2011] NSWCA 402 …. 13.70
Latham v Singleton [1981] 2 NSWLR 843 …. 24.60, 24.62, 24.72, 24.79, 24.81, 24.83, 24.85, 24.86
Latter v Braddell (1881) 44 LT 369 …. 6.5
Laugher v Pointer (1826) 5 B & C 547; 108 ER 204 …. 25.8
Laundess v Laundess (1994) 20 MVR 156 …. 9.123
Laut & Loughlin v White Feather Main Reefs (1905) 7 WALR 203 …. 15.64, 15.65
Law v Visser [1961] Qd R 46 …. 3.15
— v Wright [1935] SASR 20 …. 3.76, 15.14
Lawrence v Biddle [1966] 2 QB 504 …. 17.17
— v Fen Tigers Ltd [2011] EWHC 360 (QB) …. 25.64
— v Fen Tigers Ltd (No 2) [2015] AC 106 …. 25.12
— v Keenan (1935) 53 CLR 153 …. 5.16
— v Slatcher [1968] VR 337 …. 17.6
Le Bagge v Buses [1958] NZLR 630 …. 12.9
Le Fanu v Malcomson (1848) 1 HLC 637 …. 22.86
Le Lievre v Gould [1893] 1 QB 491 …. 19.1
League Against Cruel Sports Ltd v Scott [1986] QB 240 …. 4.40, 4.43, 26.28
Leake v Loveday (1842) 4 Man & G 972; 134 ER 399 …. 6.45
Leakey v National Trust [1980] QB 485 …. 25.11, 25.35
Leask Timber and Hardware Pty Ltd v Thorne (1961) 106 CLR 33 …. 18.35
LED Technologies Pty Ltd v Roadvision Pty Ltd (2012) 199 FCR 204 …. 24.48
Lee v Lee’s Air Farming Ltd [1961] AC 12 …. 17.4
— v Wilson (1934) 51 CLR 276 …. 22.68
Lee Transport Co Ltd v Watson (1940) 64 CLR 1 …. 15.151
Leerdam v Noori [2009] NSWCA 90 …. 18.48
Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 …. 20.78
— v — (2007) 230 CLR 22; 233 ALR 200 …. 8.10, 9.7, 10.28, 10.38, 10.132, 10.135, 20.8, 20.78, 20.80
20.83, 25.84
Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; 258 ALR 673 …. 9.31, 20.65
Leinenga v Logan City Council [2006] QSC 294 …. 18.52
Lemaire v Smith’s Newspaper Ltd (1927) 28 SR (NSW) 161 …. 23.132
Lemmon v Webb [1895] AC 1 …. 6.38, 25.68
Leonard v Pollock [2012] WASCA 108 …. 12.15
— v Smith (1992) 27 NSWLR 5 …. 21.24
Lepore v New South Wales (2001) 52 NSWLR 420 …. 20.81
Lester-Travers v City of Frankston [1970] VR 2 …. 25.32, 25.57
L’Estrange v Brisbane Gas Co [1928] St R Qd 180 …. 25.8
Letang v Cooper [1965] 1 QB 232 …. 2.6, 2.22, 2.24, 6.2
Lever Bros Ltd v Bedingfield (1899) 16 RPC 3 …. 24.29
Levi v Colgate-Palmolive Pty Ltd (1941) 41 SR (NSW) 48 …. 9.126
Lewis v Daily Telegraph Ltd [1964] AC 234 …. 22.31, 22.52, 22.55, 22.57, 22.83, 23.125
— v Levy (1858) EB & E 537; 120 ER 610 …. 23.61
Leyden v Caboolture Shire Council [2007] QCA 134 …. 11.32, 13.58
Lezam Pty Ltd v Seabridge Australia Pty Ltd (1992) 35 FCR 535 …. 19.109
Liberty Financial Pty Ltd v Bluestone Group Pty Ltd [2005] FCA 470 …. 18.45
Lidner v Corp of City of Marion [2015] SASC 152 …. 18.16, 25.15
Liebig’s Extract of Meat Co Ltd v Hanbury (1867) 17 LT (NS) 298 …. 24.28
Liesbosch, Dredger v Edison SS (Owners) [1933] AC 449 …. 15.49
Liftronic Pty Ltd v Unver (2001) 179 ALR 321 …. 13.46
Lim Poh Choo v Camden & Islington Area Health Authority [1980] AC 174 …. 15.141
Lincoln v Daniels [1962] 1 QB 237 …. 23.28
— v Gravil (1954) 94 CLR 430 …. 16.33
Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457 …. 4.29, 4.65
Lipman v Clendinnen; Phipps v Rochester Corporation [1955] 1 QB 450 …. 9.9
Lipovac v Hamilton Holdings Pty Ltd (1997) 136 FLR 400 …. 15.65
Lisle v Brice [2002] 2 Qd R 168 …. 12.76, 16.13, 16.14
Lister v Hesley Hall Ltd [2002] 1 AC 215; [2001] 2 WLR 1131 …. 20.6, 20.41, 20.42, 20.49
— v Romford Ice & Cold Storage Co Ltd [1957] AC 555 …. 20.85, 20.86, 20.87, 21.25, 21.27
Little v Commonwealth (1947) 75 CLR 94 …. 3.67, 20.21
— v Law Institute of Victoria [1990] VR 257 …. 7.14, 18.51
Littler v Price [2005] 1 Qd R 275 …. 9.109
Liverpool City Council v Laskar (2010) 77 NSWLR 666 …. 15.106
Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 588 …. 10.57
Livingstone-Thomas v Associated Newspapers Ltd [1969] 1 NSWR 771 …. 22.82
LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490 …. 4.20, 4.68
Llavero v Shearer [2014] NSWSC 1336 …. 20.71
Lloyd v Borg bht NSW Trustee and Guardian (2013) 84 NSWLR 652 …. 20.58
— v David Syme & Co Ltd [1986] AC 350; (1985) 63 ALR 83; 60 ALJR 10 …. 22.48, 22.74
— v Fanning (VSC, McDonald J, 4 November 1996, unreported) …. 7.14
— v Grace Smith & Co [1912] AC 716 …. 19.76, 20.37, 20.52
— v Lewis [1963] VR 277 …. 17.22
— v Osborne (1899) 20 LR (NSW) 190 …. 5.63, 5.67
Lloyds and Scottish Finance Ltd v Modern Cars & Caravans (Kingston) Ltd [1966] 1 QB 764 …. 15.42
Lloyds Bank Ltd v Chartered Bank of India, Australia and China [1929] 1 KB 40 …. 19.76
Lochgelly Iron & Coal Co Ltd v McMullan [1934] AC 1 …. 18.3, 18.26
London Artists Ltd v Littler [1969] 2 QB 375 …. 23.78
London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15 …. 23.36, 23.41
London Borough of Southwark v Williams [1971] Ch 734 …. 6.41
London Corporation v Riggs (1880) 13 Ch D 798 …. 1.58
London Drugs Ltd v Kuehne and Nagel International Ltd [1992] 3 SCR 299 …. 20.5
London Steamboat Co v Bywell Castle (owners of) (1879) 4 PD 219 …. 13.14
Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173 …. 18.16, 18.17
Lonrho plc v Fayed [1989] 3 WLR 631 …. 24.49, 24.73
— v — [1992] 1 AC 448 …. 24.68
Lorca v Holts Corrosion Control Pty Ltd [1981] Qd R 261 …. 15.39
Lord v McMahon [2015] NSWSC 1619 …. 4.23, 4.47, 25.68
— v Nominal Defendant (1980) 24 SASR 458 …. 2.20, 2.22
Lord Byron v Johnston (1816) 2 Mer 29; 35 ER 851 …. 24.22
Lormine Pty Ltd v Xuereb [2006] NSWCA 200 …. 13.68, 13.70
Love v Egan (1970) 65 QJPR 102 …. 6.35
Loveday v Paddison [1965] Qd R 535 …. 9.57
— v Sun Newspapers Ltd (1938) 59 CLR 503 …. 23.45
Lower Murray Urban and Rural Water Corp v Di Masi (2014) 43 VR 348 …. 23.69
Lowns v Woods (1996) Aust Torts Reports ¶81-376 …. 1.4
Lowry v Barlow [1921] NZLR 316 …. 3.44
Lowy v Alexander [2000] NSWSC 661 …. 9.105
Loxton v Waterhouse (1891) 7 WN (NSW) 98 …. 4.6
Lubrano v Proprietors of Strata Plan No 4038 (1993) 6 BPR 13,308 …. 18.15
Ludgater v Love (1881) 44 LT 694 …. 19.77
Luke v Luke (1936) 36 SR (NSW) 310 …. 4.10
Lumley v Gye (1853) 2 El & Bl 216; 118 ER 749 …. 24.38, 24.51, 24.58
Lumley Life Ltd v IOOF of Victoria Friendly Society (1990) 16 IPR 316 …. 24.17
Lyle v Soc (2009) 38 WAR 418 …. 16.15
Lynch v Lynch (1991) 25 NSWLR 411 …. 1.22, 1.24, 1.57, 9.59, 15.93, 15.95
— v Mudgee Shire Council (1981) 46 LGRA 204 …. 25.82
— v Shooters Saloon Bar Pty Ltd [2006] QCA 326 …. 11.65
Lyne v Nicholls (1906) 23 TLR 86 …. 24.93
Lyons, Sons & Co v Gulliver [1914] 1 Ch 631 …. 25.80, 25.89

M
M Isaacs & Sons Ltd v Cook [1925] 2 KB 391 …. 23.32
Maan v Westbrook [1993] 2 Qd R 267 …. 15.94
Macarthur Districts Motor Cycle Sportsmen Inc v Ardizzone (2004) 41 MVR 235 …. 9.61
MacCarthy v Young (1861) 6 H & N 329; 158 ER 136 …. 9.123
Macintosh v Dun (1908) 6 CLR 303; [1908] AC 390 …. 23.36
Macleay Pty Ltd (t/as Wobbies World) v Moore (1992) Aust Torts Reports ¶81-151 …. 13.105
MacPherson v Beath (1975) 12 SASR 174 …. 3.32
Macrocom Pty Ltd v City West Centre Pty Ltd [2003] NSWSC 898 …. 5.94
Madden v Seafolly Pty Ltd (2014) 313 ALR 1 …. 22.96, 23.45, 23.46
Madison Constructions Pty Ltd v Empire Building Group (ACT) Pty Ltd [2012] FCA 381 …. 24.23
Mafo v Adams [1970] 1 QB 548 …. 19.84
Magill v Magill (2006) 226 CLR 551; 231 ALR 277 …. 7.6, 19.67, 19.71, 19.80, 19.92
Maher-Smith v Gaw [1969] VR 371 …. 11.97, 11.98
Mahon v Osborne [1939] 2 KB 14 …. 11.15
— v Rahn (No 2) [2000] 1 WLR 2150 …. 7.13
Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522; 59 ALR 722 …. 12.79, 12.80, 21.17
Maitland v Raisbeck [1944] KB 689 …. 25.88
Majrowski v Guy’s and St Thomas’s NHS Trust [2007] 1 AC 224 …. 18.23
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 …. 15.67, 15.71
Mallett v Dunn [1949] 2 KB 180 …. 17.20
Malliate v Sharpe [2001] NSWSC 1057 …. 25.11
Mallinson v Scottish Australian Investment Co Ltd (1920) 28 CLR 66 …. 18.2
Malone v Laskey [1907] 2 KB 141 …. 25.5, 25.6, 25.7, 25.95
Malor v Ball (1900) 16 TLR 239 …. 26.10
Malyon v Plummer [1964] 1 KB 330 …. 16.23
Malzy v Eichholz [1916] 2 KB 308 …. 25.12
Management 3 Group Pty Ltd (in liq) v Lenny’s Commercial Kitchen’s Pty Ltd (2011) 281 ALR 482 ….
5.30
Manchester Corporation v Farnworth [1930] AC 171 …. 6.51
Manders v Williams (1849) 4 Exch 339; 154 ER 1242 …. 5.11
Manefield v Association of Quality Child Care Centres of NSW (t/as Child Care NSW) [2010] NSWSC
1420 …. 23.124, 23.126
Manley v Alexander (2005) 223 ALR 228; 80 ALJR 413 …. 9.57, 9.62, 11.96
Manly Council v Byrne [2004] NSWCA 123 …. 13.11
Mann v Medicine Group Pty Ltd (1991) 105 FLR 419 …. 22.74
— v — (1992) 38 FCR 400 …. 22.74
— v O’Neill (1997) 191 CLR 204; 145 ALR 682 …. 23.25, 23.27, 23.28
— v Saulnier (1959) 19 DLR (2d) 130 …. 4.15
Mansell v Griffin [1908] 1 KB 160 …. 6.53
Mansfield v Baddeley (1876) 34 LT 696 …. 26.7
Manvell v Thomson (1826) 2 C & P 303; 172 ER 137 …. 17.24
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506; 99 ALR 423; [1991] HCA 12 …. 8.19, 11.81,
12.25, 12.27, 12.34, 12.88, 19.57
Marcic v Thames Water Utilities Ltd [2004] 2 AC 42 …. 25.39
Margery Farlam Lawyers Trust Accounts, Re (No 3) (2007) 96 SASR 337 …. 20.39
Marinovski v Zutti Pty Ltd [1984] 2 NSWLR 571 …. 17.4
Maritime Union of Australia v Patrick Stevedores No 1 Pty Ltd (1998) 153 ALR 602 …. 24.69
Mark v Barkla [1935] NZLR 347 …. 26.26
Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494 …. 19.110
Marsh v Baxter (2015) 49 WAR 1; [2015] WASCA 169 …. 10.79, 10.80, 10.92, 25.2, 25.51
Marshall v Megna [2013] NSWCA 30 …. 23.37
— v Osmond [1983] QB 1034 …. 9.57, 11.67
Martin v Benson [1927] 1 KB 771 …. 15.18
— v Trustees of the British Museum (1894) 10 TLR 338 …. 22.93
— v Watson [1996] AC 74; [1995] 3 All ER 559 …. 7.13
Mason v Clarke [1955] AC 778 …. 4.12
Matthew v Flood [1938] SASR 312 …. 16.33
— v — (1939) 62 CLR 750 …. 16.33
— v — [1939] SASR 389 …. 16.33
— v — [1940] SASR 48 …. 16.33
Matthews v Kuwait Bechtel Corporation [1959] 2 QB 57 …. 9.26
— v McCullock of Australia Pty Ltd [1973] 2 NSWLR 331 …. 18.35
May v Burdett (1846) 9 QB 101; 115 ER 1213 …. 26.10, 26.14
— v Mijatovic (2002) 26 WAR 95 …. 9.107
— v Thomas (No 2) [2012] WADC 96 …. 6.32
Maynegrain Pty Ltd v Compafina Bank [1984] 1 NSWLR 258 …. 5.39
Maynes v Casey [2011] NSWCA 156 …. 4.32, 7.26
Mayor, Alderman and Burgesses of the Borough of Colchester v Brooke (1847) 7 QB 339 …. 25.68
Mbakwe v Sarkis [2009] NSWCA 330 …. 19.35
MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657; 98 ALR 193 …. 15.146
McCarty v Municipality of North Sydney (1918) 18 SR (NSW) 210 …. 25.6
McClelland v Symons [1951] VLR 157 …. 3.32, 6.30, 6.31
McClure v Commonwealth [1999] NSWCA 392 …. 20.36
McColl v Dionisatos (2002) Aust Torts Reports ¶81-652 …. 15.30
McCoy Constructions Pty Ltd v Dabrowski [2001] QSC 413 …. 25.47
McCullagh v Lawrence [1989] 1 Qd R 163 …. 16.39
McDermid v Nash Dredging & Reclamation Co Ltd [1987] AC 906 …. 20.63
McDonald v Commonwealth (1945) 46 SR (NSW) 129 …. 20.23
— v Ludwig [2007] QSC 028 …. 6.16
— v Parnell Laboratories (Aust) Pty Ltd [2007] FCA 1903 …. 3.11
— v Smitty’s Super Valu Inc 757 P 2d 120 (1988) …. 11.110
McDonald (t/as B E McDonald Transport) v Girkaid Pty Ltd (2004) Aust Torts Reports ¶81-768 ….
18.14, 18.30, 18.32
McDowall v Reynolds [2004] QCA 245 …. 4.12
McFadzean v Construction, Forestry, Mining and Energy Union [2004] VSC 289 …. 3.52, 3.57
— v — (2007) 20 VR 250 …. 3.46, 3.54, 3.56, 3.57, 25.79
McFarlane v Tayside Health Board [2000] 2 AC 59; [1999] 4 All ER 961 …. 15.41
McGhee v National Coal Board [1972] 3 All ER 1008; [1973] 1 WLR 1 …. 12.44, 12.45, 12.46
McGreevy v Cannon Hill Services Pty Ltd [2016] QSC 29 …. 9.43
McGuire v Union Steamship Co of New Zealand Ltd (1920) 27 CLR 570 …. 1.46
McHale v Watson (1964) 111 CLR 384 …. 2.8, 2.20, 2.22, 2.23, 6.3, 9.80
— v — (1966) 115 CLR 199 …. 2.22, 11.9, 13.11
McKenna v Avior Pty Ltd [1981] WAR 255 …. 16.29
McKenzie v Powley [1916] SALR 1; [1916] 5 ALR 1 …. 25.26, 25.45, 25.75
McKeown v Cavalier Yachts Pty Ltd (1988) 13 NSWLR 303 …. 5.93, 5.101
McKernan v Fraser (1931) 46 CLR 343 …. 24.67, 24.69, 24.70, 24.72
McLean v David Syme & Co Ltd (1970) 92 WN (NSW) 611 …. 23.129
— v Tedman (1984) 155 CLR 306; 56 ALR 359 …. 9.45, 11.81, 13.15
McLeod v Rub-a-dub Car Wash (Morvan) Pty Ltd (unreported, 29 February 1972, Victorian Supreme
Court) …. 25.7
McLoughlin v O’Brian [1983] 1 AC 410 …. 10.41, 10.52
McMahon v Catanzaro [1961] QWN 22 …. 25.49
McMeekin v Council of the City of Maryborough [1947] St R Qd 192 …. 25.101
McNamara v Duncan (1971) 26 ALR 584 …. 3.3, 3.13, 6.5, 6.7
McNeill v Johnstone [1958] 1 WLR 888 …. 17.19
McNeilly v Imbree (2007) 47 MVR 536; Aust Torts Reports ¶81-895 …. 11.23, 11.24
McPherson’s Ltd v Eaton (2005) 65 NSWLR 187 …. 9.123
— v Hickie (1995) Aust Torts Reports ¶81-348 …. 23.94
McQuaker v Goddard [1940] 1 All ER 471; [1940] 1 KB 687 …. 26.3
McRae v Commonwealth Disposals Commission (1951) 84 CLR 377; [1951] ALR 771 …. 15.56
McVicar v S & J White Pty Ltd (t/as Arab Steed Hotel) (2007) 97 SASR 160 …. 20.70
Meadows v Ferguson [1961] VR 594 …. 12.9
Meandarra Aerial Spraying Pty Ltd v GEJ & MA Geldard Pty Ltd [2013] 1 Qd R 319 …. 11.44
Mears v London & South Western Railway Co (1862) 11 CBNS 850; 142 ER 1029 …. 5.70
Mediana, The [1900] AC 113 …. 15.14
Medlin v State Government Insurance Commission (1995) 182 CLR 1; 127 ALR 180 …. 12.28, 12.76,
15.54, 15.68, 15.76, 15.101
Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44 …. 3.48, 3.49
Meerkin & Apel v Rossett Pty Ltd [1998] 4 VR 54 …. 9.103
Melaleuca Estate Pty Ltd v Port Stephens Council [2006] NSWCA 31 …. 25.57
Melchior v Cattanach (2001) 217 ALR 640 …. 15.28
Meldrum v Australian Broadcasting Co Ltd [1932] VLR 425 …. 22.17
Mendez v Palazzi (1976) 68 DLR (3d) 582 …. 25.16
Menulog Pty Ltd v TCN Channel Nine Pty Ltd [2012] NSWSC 247 …. 24.93, 24.99
Mercantile Mutual Insurance Co Ltd v Argent Pty Ltd (1972) 46 ALJR 432 …. 17.4, 17.8
Mercer v Commissioner for Road Transport and Tramways (NSW) (1936) 56 CLR 580 …. 11.69
Merck Sharp & Dohme (Australia) Pty Ltd v Peterson (2011) 196 FCR 145; 284 ALR 1 …. 11.78
Merryweather v Nixan (1799) 8 Term Rep 186; 101 ER 1337 …. 21.15, 21.16
Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool) Ltd [1947] AC 1 …. 20.11, 20.23,
20.24
Metall & Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391 …. 18.46
Metrolink Victoria Pty Ltd v Auspro Logistics Pty Ltd (2008) 49 MVR 350 …. 11.110
Metropolitan Asylum District Managers v Hill (1881) 6 App Cas 193 …. 25.56, 25.57
Metropolitan Police Commissioner v Reeves [2000] 1 AC 360; [1999] 3 All ER 897 …. 9.88
Metropolitan Properties v Jones [1939] 2 All ER 202 …. 25.42
Metropolitan Railway Co v Jackson (1877) 3 App Cas 193 …. 11.89
Metropolitan Saloon Omnibus Co Ltd v Hawkins (1859) 4 H & N 87; 157 ER 769 …. 22.86
Meyers v Casey (1913) 17 CLR 90 …. 15.2
Mickelbreg v 6PR Southern Cross Radio Pty Ltd (2001) 24 WAR 187 …. 22.17
Mid Density Developments Pty Ltd v Rockdale Municipal Council (1993) 116 ALR 460 …. 19.40, 19.47
Middleton v Aon Risk Services Australia Ltd [2008] WASCA 239 …. 19.6, 19.73
Midwood & Co Ltd v Manchester Corporation [1905] 2 KB 597 …. 25.27
Miles v Commercial Banking Co of Sydney (1904) 1 CLR 470 …. 22.60
Miletic v Capital Territory Health Commission (1995) 130 ALR 591; 69 ALJR 675 …. 11.86
Millar v Candy (1981) 38 ALR 299 …. 15.50
Miller v Imperial College Healthcare NHS Trust [2014] EWHC 3772 (QB) …. 15.126
— v Jackson [1977] QB 966 …. 4.14, 15.2, 24.33, 25.60, 25.64, 25.69, 25.93, 25.101
— v Jennings (1954) 92 CLR 190 …. 15.151, 15.152
— v Miller (2011) 242 CLR 446; 275 ALR 611 …. 13.75
— v Sotiropoulos (NSWCA, Mason P, Meagher and Powell JJA, 18 August 1997, unreported) …. 6.31
Miller Steamship Co Pty Ltd v Overseas Tankship (UK) Ltd (The Wagon Mound (No 2)) [1963] SR
(NSW) 948 …. 11.44
Millicent District Council v Altschwager (1983) 50 ALR 173 …. 11.99
Millington v Fox (1838) 3 My & Cr 338; 40 ER 956 …. 24.14
Mills v Baitis [1968] VR 583 …. 12.9
Ming Kuei Property Investments Pty Ltd v Hampton (1994) 126 ALR 313 …. 5.103
Minister Administering the Environmental Planning and Assessment Act 1979 v San Sebastian Pty Ltd
[1983] 2 NSWLR 268 …. 8.8, 10.10
Minister for Health v AS (2004) 33 Fam LR 223 …. 6.20
Minister of State for the Interior v RT Co Pty Ltd (1962) 107 CLR 1 …. 4.7
Minogue v Rudd [2012] NSWSC 305 …. 11.109
Mirror Newspapers Ltd v Jools (1985) 65 ALR 174 …. 23.115, 23.130
— v World Hosts Pty Ltd (1979) 141 CLR 632; 23 ALR 167 …. 22.65, 22.73, 24.87
Misson v McOwan [1906] VLR 280; (1906) 12 ALR 478 …. 23.101
Mitchell v Government Insurance Office (NSW) (1992) 15 MVR 369 …. 11.31
Mitchil (or Michael) v Alestree (1676) 1 Vent 295; 3 Keb 650; 2 Lev 172 …. 1.40
Mitsui OSK Lines Ltd v The Ship ‘Mineral Transporter’ [1983] 2 NSWLR 564 …. 15.49
M’Kew v Holland & Hannen & Cubitts (Scotland) Ltd (1970) SC (HL) 20 …. 12.71
Mobbs v Kain (2009) 54 MVR 179 …. 11.31
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; 176 ALR 411 …. 9.3, 9.5, 9.19,
9.24, 9.25, 9.80
Moder v Commonwealth; Sochorova v Commonwealth (2012) 261 FLR 396 …. 18.60
Mogul Steamship Co Ltd v McGregor, Gow & Co [1892] AC 25 …. 1.8
Mohr & Mohr v Cleaver & Cleaver [1986] WAR 67 …. 19.35
Moloughney v Wellington Racing Club [1935] NZLR 800 …. 13.66
Monie v Commonwealth [2007] NSWCA 230 …. 13.20
Monson v Tussauds Ltd [1894] 1 QB 671 …. 22.14
Montana Hotels Pty Ltd v Fasson Pty Ltd (1986) 69 ALR 258 …. 25.9
Moody v Cox & Hatt [1917] 2 Ch 71 …. 9.105
Moore v Lamb (1994) Aust Torts Reports ¶81-295 …. 16.38
— v Lambeth County Court Registrar (No 2) [1970] 1 QB 560 …. 5.76
Moorgate Mercantile Co Ltd v Finch & Read [1962] 1 QB 701 …. 5.40
— v Twitchings [1977] AC 890 …. 5.53, 5.54
Moorgate Tobacco Co Ltd v Philip Morris Ltd (1984) 156 CLR 414; 56 ALR 193 …. 24.6, 24.26
Moran v McMahon (1985) 3 NSWLR 700 …. 15.151
Morgan v Fry [1968] 2 QB 710 …. 24.75
— v Khyatt [1964] 1 WLR 475 …. 25.11
— v Lingen (1863) 8 LT 800 …. 22.46
Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 …. 23.98, 23.135
Morris v C W Martin & Sons Ltd [1966] 1 QB 716 …. 20.37
— v Marsden [1952] 1 All ER 925 …. 1.27, 2.17, 3.3, 3.16, 6.65
Morrison Sports Ltd v Scottish Power UK plc [2010] 1 WLR 1934 …. 18.16, 18.17
Morton v Knight [1990] 2 Qd R 419 …. 13.24
Moss v Christchurch Rural District Council [1925] 2 KB 750 …. 25.71
— v Eagleston [2014] NSWSC 6 …. 9.107
Motor Accidents Insurance Board v Lester [2016] TASSC 2 …. 26.35
— v Pulford (1993) Aust Torts Reports ¶81-235 …. 15.94
Motor Dealers Credit Corporation Ltd v Overland (Sydney) Ltd (1931) 31 SR (NSW) 516 …. 5.53
Moukataff v British Overseas Airways Corporation [1967] 1 Lloyds Rep 396 …. 5.61
Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1971] ALR 253 …. 1.43, 9.35, 10.44, 12.17, 12.64
Mourton v Poulter [1930] 2 KB 183 …. 9.9
Mowlds v Fergusson (1940) 64 CLR 206 …. 23.43
Mules v Ferguson [2015] QCA 5 …. 13.83
Mulligan v Coffs Harbour City Council (2005) 223 CLR 486; 221 ALR 764 …. 9.18, 11.48, 11.83
Mummery v Irvings Pty Ltd (1956) 96 CLR 99 …. 11.102, 11.104, 18.25
Munce v Vinidex [1974] 2 NSWLR 235 …. 15.39
Mundey v Askin [1982] 2 NSWLR 369 …. 22.51
Mundy v Government Insurance Office (NSW) (NSWSC, Spender JA, 5 June 1995, unreported) ….
15.35
Municipal Tramways Trust v Ashby [1951] SASR 61 …. 13.4
Munnings v Australian Government Solicitor (1994) 118 ALR 385; 68 ALJR 169 …. 2.26
Munro v Southern Dairies Ltd [1955] VLR 332 …. 25.41, 25.44, 25.46, 25.48, 25.51, 25.66, 26.39
— v Willmott [1949] 1 KB 295 …. 5.86, 5.87
Munster v Lamb (1883) 11 QBD 588 …. 23.24
Murphy v Brown (1985) 1 NSWLR 131 …. 15.45
— v Culhane [1977] 1 QB 94 …. 16.8
— v Houghton & Byrne (Qld) Pty Ltd [1964] QWN 6 …. 15.141
— v Overton Investments Pty Ltd (2004) 204 ALR 26 …. 19.111
— v Stone-Wallwork (Charlton) Ltd [1969] 1 WLR 1023 …. 15.34
Murray v Harringay Arena Ltd [1951] 2 KB 529 …. 13.66
— v McMurchy [1949] 2 DLR 442 …. 6.16, 6.42
— v Ministry of Defence [1988] 2 All ER 521; [1988] 1 WLR 692 …. 3.48, 3.49
Musca v Astle Corporation Pty Ltd (1988) 80 ALR 251 …. 19.89
Mutual Life & Citizens Assurance Co Ltd v Evatt (1968) 122 CLR 556; [1969] ALR 3 …. 1.43, 10.79,
19.15, 19.19, 19.20, 19.23, 19.24, 19.25, 19.27, 19.32, 19.35, 19.39, 19.44, 19.46, 19.51
— v — (1970) 122 CLR 628; [1971] AC 793 …. 19.15, 19.39
Myer Stores Ltd v Soo [1991] 2 VR 597 …. 3.51, 3.53, 3.59, 3.67, 3.82
MZYYR v Secretary, Department of Immigration and Citizenship (2012) 292 LR 659 …. 9.84

N
N v Chief Constable of Merseyside Police [2006] EWHC 3041 (QB) …. 20.31
Nada v Knight (1990) Aust Torts Reports ¶81-032 …. 9.87
Nader v Urban Transit Authority (1985) 2 NSWLR 501 …. 10.46, 15.30
Nagle v Rottnest Island Authority (1993) 177 CLR 423; 112 ALR 393 …. 9.18, 11.43, 11.81
Nair v Health Administration Corporation (1994) Aust Torts Reports ¶81-312 …. 9.34
Nalder v Commissioner for Railways [1983] Qd R 620 …. 18.18
Nance v British Columbia Electric Railway Co Ltd [1951] AC 601; [1951] 2 All ER 448 …. 13.2, 16.36
Napaluma v Baker (1982) 29 SASR 192 …. 15.125
Narich Pty Ltd v Commissioner of Payroll Tax [1983] 2 NSWLR 597; (1983) 50 ALR 417 …. 20.9
National Australia Bank Ltd v McFarlane (2005) Aust Torts Reports ¶81-819 …. 7.19
— v Nemur Varity Pty Ltd (2002) 4 VR 252 …. 5.94
National Coal Board v England [1954] AC 403 …. 11.90, 11.98
— v J E Evans & Co (Cardiff) Ltd [1951] 2 KB 861 …. 2.4, 5.25, 6.3
National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569 …. 15.134, 15.138
Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471 …. 7.6, 7.28, 9.44
Naxakis v Western General Hospital (1999) 197 CLR 269; 162 ALR 540 …. 11.71, 12.45, 13.90
Neal v CSR Ltd (1990) Aust Torts Reports ¶81-052 …. 15.65
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 …. 24.63
Negretto v Sayers [1963] SASR 313 …. 12.66
Neill v New South Wales Fresh Food & Ice Pty Ltd (1963) 108 CLR 362 …. 9.33
Neindorf v Junkovic (2005) 222 ALR 631 …. 9.12, 11.58
Nelipa v Robertson [2001] ACTSC 55 …. 24.79
Nelson v John Lysaght (Aust) Ltd (1975) 132 CLR 201; 5 ALR 289 …. 11.66
Nettleship v Weston [1971] 2 QB 691 …. 11.25
New South Wales v Ball (2007) 69 NSWLR 463 …. 10.138
— v Eade [2006] NSWSC 84 …. 20.88
— v Fahy (2007) 232 CLR 486; 236 ALR 406 …. 8.15, 10.39, 10.76, 10.145, 11.35, 11.36, 11.44, 11.48,
11.84
— v Godfrey (2004) Aust Torts Reports ¶81-741; [2004] NSWCA 113 …. 9.83, 9.89, 12.65
— v Griffin [2004] NSWCA 17 …. 13.11
— v Ibbett (2005) 65 NSWLR 168 …. 3.79
— v — (2006) 229 CLR 638; 231 ALR 485 …. 1.36, 3.83, 4.62, 4.63
— v Knight [2002] NSWCA 392 …. 2.24
— v Koumdjiev (2005) 63 NSWLR 353 …. 4.32
— v Kuru (2007) Aust Torts Reports ¶91-893 …. 4.35
— v Landini [2010] NSWCA 157 …. 7.13, 7.18
— v Lepore; Samin v Queensland; Rich v Queensland (2003) 212 CLR 511; 195 ALR 412 …. 2.10, 9.75,
20.3, 20.5, 20.28, 20.33, 20.42, 20.43, 20.46, 20.48, 20.62, 20.67, 20.71, 20.81, 20.82
— v McMaster [2015] NSWCA 228 …. 6.32
— v Moss (2000) 54 NSWLR 536 …. 15.69, 15.73
— v Napier [2002] NSWCA 402 …. 9.85
— v Radford [2010] NSWCA 276 …. 3.84, 14.43
— v Riley (2003) 576 NSWLR 496 …. 6.62
Newcastle City Council v Shortland Management Services (2003) 57 NSWLR 173 …. 25.17
Newington v Windeyer (1985) 3 NSWLR 555 …. 4.4, 4.5
Newmans Coach Lines Ltd v Robertshawe [1984] 1 NZLR 53 …. 15.49
News Ltd v Australian Rugby Football League Ltd (1996) 58 FCR 447; 135 ALR 33 …. 24.39, 24.41
— v — (1996) 139 ALR 193 …. 24.59
Nguyen v Nguyen (1990) 169 CLR 245; 91 ALR 161 …. 16.29, 16.35
Nicholls v Ely Beet Sugar Factory Ltd [1936] 1 Ch 343 …. 2.19
Nichols v Marsland (1875) LR 10 Ex 255 …. 26.15
Nicholson v Nicholson (1994) Aust Torts Reports ¶81-310 …. 13.30
Nielsen v City of Kamloops 10 DLR (4th) 641 (1984) …. 10.10
Nightingale v Blacktown City Council [2015] NSWCA 423 …. 10.150
Nilon v Bezzina [1988] 2 Qd R 420 …. 12.52
Nixon v Philip Morris (Aust) Ltd (1999) 95 FCR 453; 165 ALR 515 …. 14.18, 19.114
— v Slater & Gordon (2000) 175 ALR 15 …. 19.100, 22.99
NOC Inc v Schaefer 484 A 2d 729 (1984) …. 7.24
Nocton v Lord Ashburton [1914] AC 932 …. 19.1, 19.72, 19.90
Nominal Defendant v Andrews (1969) 121 CLR 562 …. 5.33
— v Gardikiotis (1996) 186 CLR 49 …. 15.131
— v Morgan Cars Pty Ltd (1974) 131 CLR 22 …. 5.33
— v Puglisi (1984) 58 ALJR 474 …. 11.99
— v Taylor (1982) 154 CLR 106; 41 ALR 244 …. 16.24
Norris v Blake (No 2) (1997) 41 NSWLR 49 …. 15.71
— v Sibberas [1990] VR 161 …. 19.38
North v Wood [1914] 1 KB 629 …. 26.9
North Sydney Council v Roman (2007) 69 NSWLR 240 …. 10.150
Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313; 146 ALR 572 …. 9.21, 9.22, 9.23, 20.8,
20.62, 20.73, 20.74, 20.76
Northern Territory v Mengel (1995) 185 CLR 307; 129 ALR 1 …. 1.6, 2.24, 2.27, 7.5, 18.52, 18.53, 18.54,
18.55, 18.56, 18.59, 18.60, 18.62, 18.63, 24.2
Norton v Hoare (No 1) (1913) 17 CLR 310 …. 6.37
Noye v Robbins [2010] WASCA 83 …. 7.17
NRMA Insurance Ltd v B & B Shipping and Marine Salvage Co Ltd (1947) 47 SR (NSW) 273 …. 4.5
Nunan v Southern Railway Co [1924] 1 KB 223 …. 16.7
Nutrientwater Pty Ltd v Baco Pty Ltd (2010) 265 ALR 140 …. 24.18
Nye v New South Wales (2004) Aust Torts Reports ¶81-725 …. 7.9
Nyoni v Shire of Kellerberrin (No 6) [2015] FCA 1294 …. 4.40

O
Oakley v Lyster [1931] 1 KB 148 …. 5.40, 5.48, 5.53
Obermann v ACP Publishing Pty Ltd [2001] NSWSC 1022 …. 22.39, 22.50
OBG Ltd v Allan; Douglas v Hello! Ltd (No 3) [2008] 1 AC 1; [2007] 4 All ER 545 …. 7.31, 24.3, 24.5,
24.48
O’Brien v Dawson (1942) 66 CLR 18 …. 24.63
— v McKean (1968) 118 CLR 540 …. 15.68, 15.141, 15.148
— v Shire of Rosedale [1969] VR 112 …. 4.38
— v — [1969] VR 645 …. 6.49
Ocean Accident Co v Ilford Gas Co [1905] 2 KB 493 …. 4.7
Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626; 66 ALR 29 …. 20.21
O’Connell v Jackson [1971] 3 All ER 129 …. 13.20
O’Connor v Sheriff of Queensland (1892) 4 QLJ 213 …. 6.58
— v SP Bray Ltd (1937) 56 CLR 464 …. 11.78, 18.7, 18.10, 18.11, 18.13, 18.16, 18.18
O’Hagan v Nationwide News Pty Ltd (2001) 53 NSWLR 89 …. 23.134
Oldham v Lawson (No 1) [1976] VR 654 …. 25.5, 25.7, 25.53
O’Leary v Lamb & Lensworth Finance Ltd (1973) 7 SASR 159 …. 19.26
Onus v Telstra Corporation Ltd [2011] NSWSC 33 …. 25.15, 25.41, 25.79
Orange v Chief Constable of West Yorkshire Police [2002] QB 347 …. 9.88
Orange Crush (Australia) Ltd v Gartrell (1928) 41 CLR 282 …. 24.9
Orica Investments Pty Ltd v McCartney [2007] NSWSC 645 …. 24.48
Oriental Foods (Wholesalers) Co Pty Ltd v Commonwealth (1983) 50 ALR 452 …. 20.21
Origliasso v Vitale [1952] St R Qd 211 …. 3.37, 3.38
Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic) (2002) 120
FCR 191 …. 24.101
Oropesa, The [1943] P 32 …. 12.73, 15.42
Orr v Isles [1965] NSWR 677 …. 23.101
Osborne v Downer EDI Mining Pty Ltd [2010] QSC 470 …. 13.16
O’Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166 …. 23.80, 23.81, 23.87
O’Shea v Permanent Trustee Co of New South Wales Ltd [1971] Qd R 1 …. 13.61, 13.63
— v Sullivan (1994) Aust Torts Reports ¶81-273 …. 15.121
Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound (No 2)) [1967] 1 AC
617 …. 12.63, 25.37, 25.53
Owners - Strata Plan No 13218 v Woollahra Municipal Council (2002) 121 LGERA 117; [2002]
NSWCA 92 …. 25.11, 25.16

P
Pacific Dunlop Ltd v Hogan (1989) 87 ALR 14 …. 24.26
Pacific Steel Constructions Pty Ltd v Barahona [2009] NSWCA 406 …. 9.43
Padbury v Holliday & Greenwood Ltd (1912) 28 TLR 494 …. 20.66
Paff v Speed (1961) 105 CLR 549 …. 15.56, 15.58, 15.69
Painter v Reed [1930] SASR 295 …. 25.50
Palace Backpackers Australia Pty Ltd v Christensen Industries Pty Ltd (2002) 23 Qld Lawyer Reps 79;
[2002] QDC 084 …. 5.91
Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; 185 ALR 280 …. 4.54, 4.59, 19.85, 24.87,
24.89, 24.93, 24.96, 24.97, 24.98, 24.99, 24.100
Pamplin v Express Newspapers Ltd (No 2) [1988] 1 All ER 282; [1988] 1 WLR 116 …. 15.18
Pantalone v Alaouie (1989) 18 NSWLR 119 …. 25.15, 25.18
Papadopoulos v MC Labour (Ruling No 2) [2009] VSC 176 …. 15.134
Papantonakis v Australian Telecommunications Commission (1985) 156 CLR 7; 57 ALR 1 …. 11.20
Papathanasopoulos v Vacopoulos [2007] NSWSC 502 …. 5.61
Pargiter v Alexander (1995) 5 Tas R 158; Aust Torts Reports ¶81-349 …. 5.73, 5.76, 5.79, 5.82, 5.94,
5.95, 15.45, 15.46
Paris v Stepney Borough Council [1951] AC 367; [1951] 1 All ER 42 …. 11.4, 11.55
Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191; 42 ALR 1; 1A IPR 684 ….
24.36
Parker v British Airways Board [1982] QB 1004 …. 5.14, 5.15, 5.38
— v Commonwealth (1965) 112 CLR 295 …. 16.33, 16.36
— v Dzundza [1979] Qd R 55 …. 17.17
— v Guardian Fire Sprinkler Co (Qld) Pty Ltd [1982] Qd R 709 …. 15.143
— v Parker [1979] Qd R 50 …. 15.124
— v South Australian Housing Trust (1986) 41 SASR 493 …. 9.21
Parkinson v St James and Seacroft University Hospital NHS Trust [2001] 3 All ER 97 …. 12.13
Parmiter v Coupland (1840) 6 M & W 105; 151 ER 340 …. 22.12, 22.38, 22.39
Parr v Ash (1876) SCR (NSW) 352 …. 5.36
Parramatta City Council v Lutz (1988) 12 NSWLR 293 …. 4.58
Parry v Cleaver [1970] AC 1 …. 15.26
— v Crooks (1981) 6 Fam LR 824 …. 3.85
— v Woolworths Ltd [2010] 1 Qd R 1 …. 18.32
Parsons v Randwick Municipal Council [2003] NSWCA 171 …. 11.33
Partridge v Chick (1951) 84 CLR 611 …. 16.7
Pask v Owen [1987] 2 Qd R 421 …. 18.27
Pasley v Freeman (1789) 3 Term Rep 51; 100 ER 450 …. 19.65, 19.69
Paul v Cooke (2013) 85 NSWLR 167 …. 13.96
— v Rendell (1981) 55 ALJR 371 …. 15.151
Paxhaven Holdings Ltd v Attorney-General [1974] 2 NZLR 185 …. 25.65
PCH Melbourne Pty Ltd v Break Fast Investments Pty Ltd [2007] VSC 87 …. 4.20
Pearce v Hallett [1969] SASR 423 …. 6.30
— v Round Oak Steel Works Pty Ltd [1969] 1 WLR 595 …. 11.111
Peat v Lin [2005] 1 Qd R 40 …. 20.20
Peco Arts Inc v Hazlitt Gallery Ltd [1983] 3 All ER 193 …. 14.52
Peden Pty Ltd v Bortolazzo [2006] 2 Qd R 574 …. 25.12
Peek v Gurney (1873) LR 6 HL 377 …. 19.5, 19.78
Pegler v Wang (UK) Ltd (2000) BLR 218 …. 13.104
Peipman v Turner [1961] NSWR 252 …. 16.39
Penfold v Westcote (1806) 2 Bos & Pal (NR) 335; 127 ER 656 …. 22.51
Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204 …. 5.7, 5.8, 5.12, 5.19, 5.23, 5.27, 5.30, 5.33, 5.39,
5.46, 5.50, 5.51, 5.70, 5.97, 5.98
Penford v Betteridge (2011) 13 DCLR (NSW) 168; [2011] NSWDC 146 …. 26.23
Pennant Hills Restaurants Pty Ltd v Barrell Insurances Ltd (1981) 145 CLR 625; 34 ALR 162 …. 15.142
Pennington v Norris (1956) 96 CLR 10 …. 13.22, 13.23, 13.24, 13.46
Penton v Calwell (1945) 70 CLR 219; [1945] ALR 262 …. 23.45, 23.46
Pergrum v Fatharly (1996) 14 WAR 92 …. 9.103
Perisher Blue Pty Ltd v Nair-Smith (2015) 295 FLR 153; 320 ALR 235 …. 13.95
Perpetual Trustees & National Executors of Tasmania Ltd v Perkins (1989) Aust Torts Reports ¶80-295
…. 5.34
Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606 …. 1.10, 1.57, 9.120, 10.5, 10.15, 10.19, 10.23,
10.24, 10.28, 10.75, 10.85, 10.86, 10.87, 10.91, 10.92, 10.93, 10.94, 10.112, 12.86, 19.18, 19.22
Perry v Australian Rail Track Corporation Ltd (2013) 64 MVR 121 …. 15.65
Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 …. 23.80, 23.82
Petchell v Du Pradal [2015] QCA 132 …. 17.8
Peter Bodum A/S v DKSH Australia Pty Ltd (2011) 280 ALR 639 …. 24.12, 24.14, 24.18
Peters v R (1998) 192 CLR 493 …. 24.60, 24.62
Petersen v Moloney (1951) 84 CLR 91 …. 20.52
Pham v Lawson (1997) 68 SASR 124 …. 10.57
Phelps v Hillingdon London Borough Council [2001] 2 AC 619; [2000] 4 All ER 504 …. 9.74
Phillips v Britannia Hygienic Laundry Co Ltd [1923] 1 KB 539 …. 18.26
— v MCG Group Pty Ltd [2012] QSC 149 …. 15.128
Phoenix Society Incorporated v Cavenagh (1996) 25 MVR 143 …. 20.36
Pickering v Ready Mixed Concrete (Queensland) Pty Ltd [1967] QWN 45 …. 17.17
— v Rudd (1815) 4 Camp 219; 171 ER 70 …. 4.44
Pinborough v Minister of Agriculture [1974] 7 SASR 493 …. 9.9
Pirelli General Cable Works Ltd v Oscar Faber & Partners [1983] 2 AC 1 …. 14.22, 14.24
Piro v W Foster & Co Ltd (1943) 68 CLR 313 …. 18.40
Pitcher v Martin [1937] 3 All ER 918 …. 26.40
Place v Searle [1932] 2 KB 497 …. 17.13
Placer Exploration Ltd v Misiorowski [1970] ALR 435; (1969) 43 ALJR 376 …. 11.91
Plantet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 …. 15.152
Plato Films v Speidel [1961] AC 1090 …. 23.134
Platt v Nutt (1988) 12 NSWLR 231 …. 2.23, 2.24
Pledge v Roads and Traffic Authority (2004) 205 ALR 56; 78 ALJR 572 …. 12.23, 12.28, 12.29, 12.85
Plenty v Dillon (1991) 171 CLR 635; 98 ALR 353 …. 1.14, 3.75, 4.33, 4.35, 4.37, 6.28
Plomien Fuel Economiser Co Ltd v National School of Salesmanship Ltd (1943) 60 RPC 209 …. 24.19
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; 59 ALJR 492 …. 13.22, 13.24, 13.46
Poland v John Parr & Sons [1927] 1 KB 236 …. 20.38
Polemis and Furness, Withy & Co Ltd, Re [1921] 3 KB 560 …. 12.61
Police v Greaves [1964] NZLR 295 …. 3.24, 3.30
Poole v State Transport Authority (Rail Division) (1982) 31 SASR 74 …. 13.19
Port Stephens Shire Council v Tellamist Pty Ltd (2004) 235 LGERA 98 …. 4.55, 4.56, 4.60, 4.69
Potts v Frost (2011) 59 MVR 267 …. 11.110
— v Smith (1868) LR 6 Eq 311 …. 25.21
Powell v Gelston [1916] 2 KB 615 …. 22.76
Powney v Kerang and District Health (2014) 43 VR 506 …. 12.40
PQ v Australian Red Cross Society [1992] 1 VR 19 …. 11.61
Pratt v British Medical Association [1919] 1 KB 244 …. 24.58
— v Connolly (1994) Aust Torts Reports ¶81-283 …. 20.59
— v Young (1952) 69 WN (NSW) 214 …. 25.52
Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 …. 15.152
Precision Products (NSW) Pty Ltd v Hawkesbury City Council (2008) 74 NSWLR 102 …. 10.126,
10.142, 10.145
Premier Group Pty Ltd v Followmont Transport Pty Ltd [2000] 2 Qd R 338 …. 5.91
Prendergast v Roberts [2012] QSC 144 …. 23.117
Presser v Caldwell Estates Pty Ltd [1971] 2 NSWLR 471 …. 19.26
Prestia v Aknar (1996) 40 NSWLR 165 …. 13.84
Preston v Star City Pty Ltd [1999] NSWSC 1273 …. 18.17
Preti v Sahara Tours Pty Ltd (2008) 22 NTLR 215; [2008] NTCA 2 …. 16.21, 16.35, 16.44
Price v New South Wales [2011] NSWCCA 341 …. 9.83
Pride of Derby and Derbyshire Angling Association Ltd v British Celanese Ltd [1953] Ch 149 …. 25.66,
25.69
Priestley v Fowler (1837) 3 M & W 1; 150 ER 1030 …. 9.28
Prior v Kemp [2001] WASCA 22 …. 6.36
Private Parking Services (Vic) Pty Ltd v Huggard (1996) Aust Torts Reports ¶81-397 …. 5.76, 5.82, 5.95
Progress & Properties Ltd v Craft (1976) 135 CLR 651; 12 ALR 59 …. 18.23, 18.34, 18.39
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 …. 18.7
Project Company No 2 Pty Ltd v Cushway Blackford & Associates Pty Ltd [2011] QCA 102 …. 10.113,
10.118
Proprietors of Strata Plan No 14198 v Cowell (1989) 24 NSWLR 478 …. 25.10
Proudman v Allen [1954] SASR 336 …. 1.8, 6.39, 6.42
Public Transport Commission (NSW) v Perry (1977) 137 CLR 107; 14 ALR 273 …. 2.17, 4.40, 6.4
Public Trustee v Zoanetti (1945) 70 CLR 266 …. 16.36, 16.43
Pullen v Gutteridge, Haskins & Davey Pty Ltd [1993] 1 VR 27 …. 14.23, 19.37
Pullman v Walter Hill & Co Ltd [1891] 1 QB 524 …. 22.75
Puntoriero v Water Administration Ministerial Corporation (1999) 199 CLR 575 …. 18.4
Purdy v Woznesensky [1937] 2 WWR 116 …. 7.2
Pym v Great Northern Railway Co (1862) 2 B & S 759; 121 ER 1254 …. 16.26
Pyrenees Shire Council v Day (1998) 192 CLR 330; 151 ALR 147 …. 9.24, 10.15, 10.123, 10.126, 10.127,
10.128, 10.129, 10.137, 10.141

Q
Qantas Airways Ltd v Transport Workers’ Union of Australia (2011) 280 ALR 503 …. 24.4, 24.44, 24.46,
24.50, 24.54
QIW Retailers Ltd v Felview Pty Ltd [1989] 2 Qd R 245 …. 18.50
Qualcast (Wolverhampton) Ltd v Haynes [1959] AC 743 …. 9.33
Queensland v Kelly [2015] 1 Qd R 577 …. 13.54, 13.94
— v Nolan [2002] 1 Qd R 454 …. 6.44
Queensland Art Gallery Board of Trustees v Henderson Trout (a firm) [2000] QCA 93 …. 10.105
Quigley v Wallace [2015] WASC 479 …. 22.54
Quinn v Hill [1957] VR 439 …. 1.4, 9.87
— v Leathem [1901] AC 495 …. 24.39, 24.42, 24.47, 24.56, 24.60
Qumsieh v Guardianship and Administration Board [1998] VSCA 45 …. 6.25

R
R v A-G (Cth) v Associated Northern Collieries (1911) 14 CLR 387 …. 24.62
— v Awang [2004] 2 Qd R 672 …. 3.49
— v Bailiff [2002] ACTSC 79 …. 3.32
— v Brockhill Prison; Ex parte Evans (No 2) [2000] 4 All ER 15 …. 6.64
— v Brown (1841) C & M 314; 174 ER 522 …. 3.69
— v Burdett (1882) 106 ER 873 …. 22.1
— v Creevey (1813) 105 ER 102 …. 23.20
— v Gabriel (2004) 182 FLR 102; [2004] ACTSC 30 …. 3.21, 3.22, 3.25
— v Garrett (1988) 50 SASR 392 …. 3.57
— v Governor of Brockhill Prison; Ex parte Evans (No 2) [2001] 2 AC 19 …. 3.71
— v Hamilton (1891) 12 LR (NSW) 111 …. 3.26
— v Ireland [1998] AC 147 …. 3.23
— v Kelly [1998] 3 All ER 741 …. 5.3
— v Kinloch (1996) 187 LSJS 124 …. 6.53
— v Lord Abingdon (1794) 170 ER 337 …. 23.20
— v Macquarie (1875) 13 SCR (NSW) 264 …. 3.54
— v Macnamara (1893) 14 LR (NSW) 515 …. 22.83
— v Manchester City Magistrates’ Court; Ex parte Davies [1989] QB 631; [1989] 1 All ER 910 …. 6.55
— v Moore (1832) 3 B & Ad 184; 110 ER 68 …. 25.82
— v Papadimitropoulos (1957) 98 CLR 249 …. 6.10
— v Phillips (1971) 45 ALJR 467 …. 3.24
— v Portelli (2004) 148 A Crim R 282 …. 6.33
— v Rimmington [2006] 1 AC 459 …. 25.77
— v Saskatchewan Wheat Pool [1983] 1 SCR 205 …. 18.5
— v Shamrock [1994] QB 279 …. 25.86
— v St George (1840) 9 Car & P 483 …. 3.26
— v Terry [1955] VLR 114 …. 6.53, 6.54
— v Williams [1923] 1 KB 340 …. 6.10
— v Young (1999) 46 NSWLR 681 …. 16.45
R & C Products Pty Ltd t/as Samuel Taylor v S C Johnson & Sons Pty Ltd (1993) 113 ALR 487 …. 24.24
R H Willis & Son v British Car Auctions Ltd [1978] 2 All ER 392 …. 5.53
R Lowe Lippmann Figdor & Franck (a firm) v AGC (Advances) Ltd [1992] 2 VR 671 …. 19.43
Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 406; 254 ALR 606 …. 22.31, 22.37, 22.41,
22.45, 22.58, 24.101
— v Parker (1992) 29 NSWLR 448 …. 23.80
Radstock Co-operative & Industrial Society Ltd v Norton-Radstock Urban District Council [1968] Ch
605 …. 25.54, 25.99
Rae v Broken Hill Proprietary Co Ltd (1957) 97 CLR 419 …. 9.32
Ragg v Palmer [2016] NSWDC 14 …. 13.20
Railtrack plc v Wandsworth London Borough Council [2001] EWCA Civ 1236 …. 25.85
Railway Commissioner v Corben [1939] SR (NSW) 55 …. 11.106
Ralph v Strutton [1969] Qd R 348 …. 9.89
Ramsay v Larsen (1964) 111 CLR 16; [1964] ALR 1121 …. 6.53, 6.54, 9.70, 9.75, 20.67
Ramsey v Vogler [2000] NSWCA 260 …. 20.50, 20.54
Random House Australia Pty Ltd v Abbott (1999) 94 FCR 296; 167 ALR 224 …. 22.27, 22.39, 22.46
Rands v McNeil [1955] 1 QB 253 …. 26.7
Ranieri v Ranieri [1973] 7 SASR 418 …. 13.65
Rapier v London Tramways Co [1893] 2 Ch 588 …. 25.36
Ratcliffe v Evans [1892] 2 QB 524 …. 22.14, 24.89, 24.91, 24.96
Rawlinson v Rice [1998] 1 NZLR 454 …. 18.60
Rawlinson & Brown Pty Ltd v Witham (1995) Aust Torts Reports ¶81-341; NSW ConvR ¶55-740 ….
19.26, 19.38
Read v Croydon Corporation [1938] 4 All ER 631 …. 18.26
— v Great Eastern Railway Co (1868) LR 3 QB 555 …. 16.8
— v Lyons & Co Ltd [1947] AC 156 …. 9.122
Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500; 38 ALR 417 …. 22.27, 22.30, 22.33, 22.52,
22.53, 23.126
Reckitt & Colman Products Ltd v Borden Inc [1990] 1 All ER 873; [1990] 1 WLR 491 …. 24.7, 24.8,
24.24
Redding v Lee (1983) 151 CLR 117; 47 ALR 241 …. 15.25, 15.138
Redgrave v Hurd (1881) 20 Ch D 1 …. 19.2
Reece v Reece (1994) 19 MVR 103 …. 15.116
Rees v Sinclair [1974] 1 NZLR 180 …. 9.111
Reeve v Brisbane City Council [1995] 2 Qd R 661 …. 10.57
— v Palmer (1858) 28 LJ CP 168; 141 ER 33 …. 5.57
Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491; 187 ALR 1 …. 15.100, 22.22
Reid v Smith (1905) 3 CLR 656; 12 ALR 126 …. 5.4
Reinhold v New South Wales Lotteries Corporation (No 2) (2008) 82 NSWLR 762 …. 21.42
Rejfek v McElroy (1965) 112 CLR 517 …. 3.38
Renner v Orchard [1967] QWN 3 …. 15.61
Renouf v Federal Capital Press of Australia Pty Ltd (1977) 17 ACTR 35 …. 23.89
Rentokil Pty Ltd v Channon (1989) 19 NSWLR 417 …. 19.32
Reynolds v Aluma-Lite Products Pty Ltd (2010) Aust Torts Reports ¶82-072 …. 5.94
— v Clarke (1725) 1 Stra 634; 93 ER 747 …. 2.13
Rhodes v OPO [2015] UKSC 32 …. 7.5
Rich v Queensland; Samin v Queensland (2001) Aust Torts Reports ¶81-626 …. 20.82
Richard Ellis (WA) Pty Ltd v Mullins Investments Pty Ltd (1995) Aust Torts Reports ¶81-319 …. 19.52
Richards v Butcher (1890) 7 RPC 288 …. 24.91
— v Forsyth [2007] VSCA 227 …. 8.24
— v Victoria [1969] VR 136 …. 9.70
Richardson v Norris Smith Real Estate Ltd [1971] 1 NZLR 152 …. 19.26
Richmond City Council v Scantelbury [1991] 2 VR 38 …. 25.11
Richters v Motor Tyre Service Pty Ltd [1972] Qd R 9 …. 15.117
Ridis v Strata Plan 10308 [2005] NSWCA 246 …. 11.78
Rigby v Chief Constable of Northamptonshire [1985] 2 All ER 985; [1985] 1 WLR 1242 …. 6.42, 6.43
Rigg v Alietti [1982] WAR 203 …. 26.19
Riley v Organ [1921] St R Qd 28 …. 24.60
Rimmer v Liverpool City Council [1985] QB 1 …. 9.21
Rinsale Pty Ltd v Australian Broadcasting Corporation (1993) Aust Torts Reports ¶81-231 …. 6.9
Rixon v Star City Pty Ltd (2001) 53 NSWLR 98 …. 3.9, 3.11, 3.27, 3.31
Roach v Yates [1937] 3 All ER 442; [1938] 1 KB 256 …. 15.89
Roads and Traffic Authority v Royal (2008) 245 ALR 653; 82 ALJR 870 …. 1.61, 12.28, 12.32
Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; 238 ALR 761 …. 9.2,
9.4, 9.6, 9.12, 9.18, 9.19, 10.39, 10.135, 11.1, 11.2, 11.48, 11.52, 11.54, 11.59, 11.62
— v Refrigerated Roadways Pty Ltd (2009) 77 NSWLR 360 …. 10.134, 10.138
Roads and Traffic Authority (NSW) v Rolfe [2010] NSWSC 714 …. 10.150
Robert Bax & Associates v Cavenham Pty Ltd [2012] QCA 177 …. 9.109
Roberts v Bass (2002) 212 CLR 1; 194 ALR 161 …. 23.33, 23.39, 23.51, 23.53, 23.54, 23.58
— v Roberts (1864) 5 B & S 384; 122 ER 874 …. 12.10
— v Ramsbottom [1980] 1 All ER 7 …. 6.66, 11.12
Robertson v B H Maclachlan Pty Ltd (1985) 58 ALR 668; 59 ALJR 409 …. 11.80
— v Robin [1967] SASR 151 …. 16.27
— v Swincer (1989) 52 SASR 356 …. 9.77
Robinson v Balmain New Ferry Co Ltd [1910] AC 295 …. 3.63, 6.52
— v Kilvert (1889) 41 Ch D 88 …. 25.51, 25.98
— v Post Office [1974] 2 All ER 737; [1974] 1 WLR 1176 …. 12.66
Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550 …. 11.95
Roblin v The Public Trustee for the Australian Capital Territory [2015] ACTSC 100 …. 5.3
Robson v Hallett [1967] 2 QB 939 …. 4.28
— v Leischke (2008) 72 NSWLR 98 …. 25.16, 25.72
Roche v Kigetzis (2015) 72 MVR 67 …. 11.82
Roddan v Corrections Corporation of Australia Pty Ltd [2001] WASC 196 …. 3.47
Rodrigues v Ufton (1894) 20 VLR 539 …. 4.6
Roe v Minister of Health [1954] 2 QB 66; [1954] 2 All ER 131 …. 8.9, 9.95, 9.101, 11.17, 11.56, 11.110,
20.18, 20.68
Rofe v Smith’s Newspapers Ltd (1924) 25 SR (NSW) 4 …. 23.4, 23.6
Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; 201 ALR 184 …. 23.41, 23.59, 23.128, 23.138,
23.139
— v Rawlings [1969] Qd R 262 …. 1.25
— v Whitaker (1992) 175 CLR 479; 109 ALR 625 …. 6.22, 9.92, 9.95, 9.97, 11.15, 11.71, 11.73, 11.75,
11.77, 13.81, 13.90, 13.92, 23.139
Roggenkamp v Bennett (1950) 80 CLR 292 …. 13.48, 13.50, 13.61, 13.64
Rokich v Gianoli (WASC, Pidgeon, Murray and Parker JJ, 4 March 1997, unreported) …. 26.17
Rolfe v Investec Bank (Aust) Ltd [2014] VSCA 38 …. 5.61
Rolls-Royce Motors Ltd v DIA (Engineering) Pty Ltd (1981) 50 FLR 340 …. 24.11
Roman Catholic Church v Koffman (1996) Aust Torts Reports ¶81-399 …. 9.72
Romano v Spagnol (NSWCA, Kirby P, Meagher and Cole JJA, 17 October 1994, unreported) …. 26.6
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431; 151 ALR 263 ….
9.7, 9.11, 9.12, 9.18, 11.43, 11.51, 11.60, 11.64
Ronald v Harper (1910) 11 CLR 63 …. 11.94
Rondel v Worsley [1969] 1 AC 191 …. 9.111
Rookes v Barnard [1964] AC 1129; [1964] 1 All ER 367 …. 24.75, 24.78, 24.81, 24.84
Rootes v Shelton (1967) 116 CLR 383 …. 13.48, 13.60, 13.66, 13.95
Rooth v Wilson (1817) 1 B & Ald 59; 106 ER 22 …. 26.27
Rose v Plenty [1976] 1 WLR 141 …. 20.35, 20.36
Rosecell Pty Ltd v JP Haines Plumbing Pty Ltd [2015] NSWSC 1238 …. 5.53
Rosecrance v Rosecrance (1995) 105 NTR 1 …. 15.66, 15.94
Rosenberg v Percival (2001) 205 CLR 434; 178 ALR 577; [2001] HCA 18 …. 9.96, 11.42, 11.71, 11.77,
12.45, 12.88, 12.89
Ross v Caunters [1980] Ch 297; [1979] 3 All ER 580 …. 9.103, 10.99
Roswell v Prior (1701) 12 Mod 635; 88 ER 1537 …. 25.14
Rosza v Samuels [1969] SASR 205 …. 3.31
Rothwell v Chemical & Insulating Co Ltd [2006] 4 All ER 1161 …. 1.15
Rowan v Cornwall (No 5) (2002) 82 SASR 152 …. 22.74, 23.55, 23.56
Royal v Smurthwaite (2007) 47 MVR 401 …. 1.62
Royal Automobile Association of South Australia (Inc) v Hancock [1939] SASR 60 …. 24.11
Royal Baking Powder Co v Wright, Crossley & Co (1900) 18 RPC 95 …. 12.9, 24.90
Royal Commission on Thomas Case, Re [1982] 1 NZLR 252 …. 7.15
RT & YE Falls Investments Pty Ltd v New South Wales [2007] NSWCA 18 …. 19.52
Ruddock v Taylor (2003) 58 NSWLR 269 …. 3.46, 3.74
— v — (2005) 222 CLR 612; 221 ALR 32 …. 3.61, 3.64, 3.74
Rufo v Hosking (2004) 61 NSWLR 678 …. 12.18, 12.19
Ruhan v Water Conservation and Irrigation Commission (1920) 20 SR (NSW) 439 …. 25.7
Rural Export and Trading (WA) Pty Ltd v Hahnheuser (2007) 243 ALR 356 …. 2.13, 5.18
Russell v Edwards (2006) 65 NSWLR 373 …. 13.35, 13.36
— v London & South Western Railway (1908) 24 TLR 548 …. 11.102
— v Wilson (1923) 33 CLR 538 …. 5.59
Rutherford v Attorney-General [1976] 1 NZLR 403 …. 9.123
Ruthning v Ferguson [1930] St R Qd 325 …. 26.39
Ryan v Ann Street Holdings Pty Ltd [2006] 2 Qd R 486 …. 20.48
— v Electricity Trust of South Australia (No 1) (1987) 47 SASR 220 …. 11.66
Rylands v Fletcher (1866) LR 1 Ex 265; (1868) LR 3 HL 330 …. 1.7, 9.121, 25.38

S
S v Attorney-General [2003] 3 NZLR 450 …. 20.17
— v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR
217; 216 ALR 252 …. 20.79
S J Sanders Pty Ltd v Schmidt [2012] QCA 358 …. 11.30
S Pearson & Son Ltd v Dublin Corporation [1907] AC 351 …. 19.80
Sachs v Miklos [1948] 2 KB 23 …. 5.86, 5.87
Sadcas Pty Ltd v Business and Professional Finance Pty Ltd [2011] NSWCA 267 …. 5.49, 5.83
Sadler v Madigan [1998] VSCA 53 …. 3.51
Sahade v Bischoff [2015] NSWCA 418 …. 7.13
Sai Teys McMahon Real Estate Pty Ltd v Queen Street Apartments Pty Ltd [2007] QSC 264 …. 24.43
Samios v Repatriation Commission [1960] WAR 219 …. 9.101, 20.18, 20.68
Samuelson v Producers Distributing Co Ltd (1931) 48 RPC 580; [1931] 1 All ER 74 …. 24.33
San Sebastian Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979
(1986) 162 CLR 340; 68 ALR 161 …. 10.13, 19.18, 19.30, 19.33, 19.34, 19.51
Sanders v Snell (1998) 196 CLR 329; 157 ALR 491 …. 18.51, 18.54, 18.57, 18.60, 24.3, 24.4, 24.5
Sands v South Australia [2013] SASC 44 …. 7.26
Sarch v Blackburn (1930) 47 TLR 25 …. 26.14
SBEG v Commonwealth (2012) 208 FCR 235; 295 ALR 81 …. 9.85
Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121; 170 ALR 594 …. 11.102, 11.110
Schemmell v Pomeroy (1989) 50 SASR 450 …. 5.23, 5.40, 5.50
Schiliro v Peppercorn Child Care Centres Pty Ltd (No 2) [2001] 1 Qd R 518 …. 18.18
Schimke v Clements (2011) 58 MVR 390 …. 13.24, 16.23, 16.26, 16.44
Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275 …. 24.90, 24.93, 24.94, 24.95
Schloendorf v Society of New York Hospital 105 NE 92 (1914) …. 6.14
Schneidas v Corrective Services Commission (NSWSC, Lee J, 8 April 1983, unreported) …. 6.50
Scholefield v Bates [1958] SASR 317 …. 16.34
Schuller v S J Webb Nominees Pty Ltd (2015) 124 SASR 152 …. 9.16, 13.51, 13.56, 13.64, 18.28
Schultz v McCormack [2015] NSWCA 330 …. 9.7, 11.63, 13.94
Schweizer v Central Hospital 53 DLR (3d) 494 (1974) …. 6.16
Scott v CAL No 14 Pty Ltd (t/as Tandara Motor Inn) (No 2) (2007) 17 Tas R 331; 256 ALR 521 …. 9.16
— v Davis (2000) 204 CLR 333; 175 ALR 217 …. 20.6, 20.17, 20.58
— v Heathwood [1953] St R Qd 91 …. 15.141
— v Pedler (2003) 74 ALD 424; [2003] FCA 650 …. 24.4
— v — (2004) 80 ALD 283; [2004] FCAFC 67 …. 24.4
— v Shepherd (1773) 2 Wm B1 892; 96 ER 525 …. 2.2, 2.13, 2.14, 3.5
Seafolly Pty Ltd (ACN 001 537 748) v Madden (2012) 297 ALR 337 …. 23.81, 24.96
Searle v Wallbank [1947] AC 341 …. 26.34, 26.35, 26.36, 26.37, 26.38
Secretary, Department of Health and Community Services v J W B & S M B (Marion’s Case) (1992) 175
CLR 218 …. 3.11, 6.13, 6.14, 6.19, 6.20, 6.22
Sedleigh-Denfield v O’Callaghan [1940] AC 880 …. 25.1, 25.2, 25.3, 25.8, 25.10, 25.37, 25.38, 25.46,
25.62, 25.68, 25.82
Seiwa Pty Ltd v Owners Strata Plan 35042 (2006) 12 BPR 23,673 …. 18.15, 18.30
Semenov v Pirvu [2011] VSC 605 …. 5.75
Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669 …. 22.61
Seton Laing & Co v Lafone (1887) 19 QBD 68 …. 5.54
Seymour v British Paints (Australia) Pty Ltd [1967] Qd R 227 …. 16.29
— v Seymour (1996) 40 NSWLR 358 …. 14.51
Shannon v New South Wales [2015] NSWDC 69 …. 4.9
Shapiro v La Morta (1923) 40 TLR 201 …. 24.94
Sharman v Evans (1977) 138 CLR 563; 13 ALR 57 …. 15.61, 15.63, 15.64, 15.66, 15.80, 15.84, 15.117,
15.151, 15.152
Sharp v Paramatta City Council (2015) 209 LGERA 220; [2015] NSWCA 260 …. 9.12, 13.70
Shaw v Thomas [2010] NSWCA 169 …. 11.44, 11.86
Shearman v Folland [1950] 2 KB 43 …. 15.27
Shedlezki v Bronte Bakery Pty Ltd (1970) 72 SR (NSW) 378 …. 18.36, 18.38
Sheen v Fields Pty Ltd (1984) 51 ALR 345; 58 ALJR 93 …. 9.52
Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287 …. 4.68, 25.70, 25.71
Shelley v Szelley [1971] SASR 430 …. 13.14
Shellharbour City Council v Rigby (2006) 150 LGERA 11; Aust Torts Reports ¶81-864 …. 11.31
Sherman v Condon [2014] QDC 189 …. 4.68
— v Nymboida Collieries Pty Ltd (1963) 109 CLR 580 …. 18.34
Shiel v Transmedia Productions Pty Ltd [1987] 1 Qd R 199 …. 23.105, 23.107, 23.109
Shiels v Cruikshank [1953] 1 All ER 874; [1953] 1 WLR 533 …. 16.22
Shirt v Wyong Shire Council [1978] 1 NSWLR 631 …. 9.5
Short v City Bank of Sydney (1912) 15 CLR 148 …. 24.43
Shrimp v Landmark Operations Ltd (2007) 163 FCR 510 …. 21.37
Shuttleworth v Vancouver Hospital [1927] 2 DLR 573 …. 25.17
Sibley v Kais (1967) 118 CLR 424; [1968] ALR 158 …. 11.78, 11.80, 13.24
— v Milutinovic (1990) Aust Torts Reports ¶81-013 …. 3.13
Sid Ross Agency Pty Ltd v Actors and Announcers Equity Association of Australia [1970] 2 NSWR 47
…. 24.5
— v — [1971] 1 NSWLR 760 …. 24.79
Sidaway v Governors of Bethlem Royal Hospital [1985] AC 871; [1985] 1 All ER 643 …. 9.95
Sienkiewicz v Greif (UK) Ltd; Willmore v Knowsley Metropolitan Borough Council [2011] 2 WLR 523
…. 12.47
Silkin v Beaverbrook Newspapers Ltd [1958] 2 All ER 516; [1958] 1 WLR 743 …. 23.83, 23.87
Silservice Pty Ltd v Supreme Bread Pty Ltd (1949) 50 SR (NSW) 127 …. 25.89
Sim v Daily Telegraph Ltd [1968] 2 QB 157 …. 22.47
— v Stretch [1936] 2 All ER 1237 …. 22.38, 22.41
Simmons v Story [2001] VSCA 187 …. 9.103
Simms v Leighy Rugby Football Club [1969] 2 All ER 923 …. 13.66
Simon v Condran [2013] NSWDC 32 …. 6.43, 26.23
Simonius Vischer & Co v Holt & Thompson [1979] 2 NSWLR 322 …. 15.42
Simpson v Bannerman (1932) 47 CLR 378 …. 26.14, 26.19
— v Grundy [2011] QSC 299 …. 9.61
Simpson (by her tutor Simpson) v Diamond [2001] NSWSC 925 …. 15.73
Sinclair v Bjelke-Petersen [1984] 1 Qd R 484 …. 23.67
— v Preston [1970] WAR 186 …. 19.80
— v William Arnott Pty Ltd; Kell & Rigby Pty Ltd (Third Party) (No 2) (1963) 64 SR (NSW) 88 …. 9.38
Singer Manufacturing Co v Loog (1882) 8 App Cas 15 …. 24.19
Singleton v John Fairfax & Sons Ltd [1983] 2 NSWLR 722 …. 23.121
Six Carpenters’ Case, Re (1610) 8 Co Rep 146a; 77 ER 695 …. 4.38
SJ Weir Ltd v Bijok (2011) 112 SASR 127 …. 11.110, 25.19
Skelton v Collins (1966) 115 CLR 94 …. 15.26, 15.80, 15.84, 15.119, 15.122, 15.127
Sklavos v Australasian College of Dermatologists [2016] FCA 179 …. 10.66
Slater v Swann (1730) 2 Stra 872; 93 ER 906 …. 5.27
Slaveski v Victoria [2010] VSC 441 …. 3.7, 3.22, 3.65, 5.21, 5.73, 5.77
Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304; 177 ALR 585 …. 18.3, 18.4, 18.12, 18.13, 18.14,
18.30
Smith v Austin Lifts Ltd [1959] 1 WLR 100 …. 9.38, 9.46
— v Brambles Australia Ltd [2011] NSWSC 963 …. 9.41
— v Capella State High School Parents and Citizens Association [2004] QSC 34 …. 26.4, 26.10, 26.33
— v Charles Baker & Sons [1891] AC 325 …. 9.32, 13.49, 13.51
— v Eric S Bush [1990] 1 AC 831 …. 1.56, 9.92
— v Jenkins (1970) 119 CLR 397 …. 11.6, 13.72
— v Leech Brain & Co Ltd [1962] 2 QB 405 …. 12.66
— v Leurs (1945) 70 CLR 256; [1945] ALR 392 …. 9.67, 9.80, 9.81, 10.128
— v McGuiggan (1863) 2 SCR (NSW) 268 …. 22.86
— v O’Byrne (1894) 5 QLJ 126 …. 6.54
— v Retirement Benefits Fund Investment Trust (1994) Aust Torts Reports ¶81-286 …. 11.100
— v Spooner (1810) Taunt 246; 128 ER 98 …. 24.88
— v Stages [1989] AC 928; [1989] 2 WLR 529 …. 20.32
— v State Bank of New South Wales Ltd (2001) 188 ALR 729 …. 19.32, 19.51
— v Stone (1647) Style 65; 82 ER 533 …. 2.17, 4.40, 4.42
— v Streatfield [1913] 3 KB 764 …. 23.56
— v Williams (2006) 47 MVR 169 …. 26.38
— v Zhong (2015) 73 MVR 64 …. 15.70
Smythe v Reardon [1949] St R Qd 74 …. 6.10, 19.84
Snape v Reid (1984) Aust Torts Reports ¶80-620 …. 15.94
Sneddon v Speaker of the Legislative Assembly [2011] NSWSC 508 …. 10.76
Soanes v Plessing [1985] 2 Qd R 55 …. 6.50
Soblusky v Egan (1960) 103 CLR 215 …. 20.58
Solloway v McLaughlin [1938] AC 247 …. 5.83, 5.87
Solomons v R Gertzenstein Ltd [1954] 2 QB 243 …. 18.24
Somerville v Walsh (NSW Court of Appeal CA 40321 of 1997, 26 February 1998) …. 10.105
Sony Music Australia Ltd v Tansing (t/as Apple House Music) (1993) 27 IPR 649 …. 24.25
South Australia v Johnson (1982) 42 ALR 161 …. 19.58, 19.61, 19.86
South Australia v Lampard-Trevorrow (2010) 106 SASR 331 …. 18.56
South Australian Co v Corporation of the City of Port Adelaide [1914] SALR 16 …. 25.65
South Hetton Coal Co Ltd v North-Eastern News Association Ltd [1894] 1 QB 133 …. 22.87, 23.84
South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8 …. 9.46
South Tweed Heads Rugby League Football Club Ltd v Cole (2002) 55 NSWLR 113 …. 9.15
South Wales Miners’ Federation v Glamorgan Coal Co Ltd [1905] AC 239 …. 24.47, 24.52
Southern Portland Cement Ltd v Cooper (1973) 129 CLR 295; [1974] AC 623; (1973) 2 ALR 113 …. 9.9
Southern Properties (WA) Pty Ltd v Executive Director of Department of Conservation and Land
Management (2012) 42 WAR 287 …. 11.68, 25.3, 25.58
Southport Corporation v Esso Petroleum Co Ltd [1954] 2 QB 182 …. 1.14, 2.2, 4.15
Southwark London Borough Council v Tanner [1999] 4 All ER 449 …. 25.40
Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 …. 18.8, 18.12, 18.17, 18.37
Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973] QB 27 …. 10.78
Spautz v Butterworth (1996) 41 NSWLR 1 …. 3.68, 6.55
Speed v Thomas Swift & Co Ltd [1943] KB 557 …. 9.43
Spira v Commonwealth Bank (2003) 57 NSWLR 544 …. 24.79
Sprod v Public Relations Oriented Security Pty Ltd (2007) Aust Torts Reports ¶81-921 …. 20.45, 20.48
SSYBA Pty Ltd v Lane [2013] WASC 445 …. 4.51, 4.57
St George Bank Ltd v Quinerts Pty Ltd (2009) 25 VR 666 …. 21.37
St George’s Healthcare NHS Trust v S [1998] 3 All ER 673 …. 6.25
St Helen’s Smelting Co v Tipping (1865) 11 HL Cas 642; 11 ER 1483 …. 25.30, 25.32, 25.36, 25.40, 25.66
St Mark’s Orthodox Coptic College v Abraham [2007] NSWCA 185 …. 1.24, 1.25, 9.77, 9.79
Standard Chartered Bank v Pakistan National Shipping Corporation (Nos 2 and 4) [2002] 3 WLR 1547
…. 19.90
Stanley v Layne Christensen Co [2006] WASCA 56 …. 24.69
— v Powell [1891] 1 QB 86 …. 2.4, 2.8
State Bank of New South Wales Ltd v Currabubula Holdings Pty Ltd (2001) 51 NSWLR 399 …. 22.60,
22.76
State Government Insurance Commission (SA) v Trigwell (1979) 142 CLR 617; 26 ALR 67 …. 26.34,
26.35, 26.36, 26.38
State Government Insurance Office (Qld) v Biemann (1983) 154 CLR 539; 49 ALR 247 …. 16.47
State Rail Authority of New South Wales v Chu (2008) Aust Torts Reports ¶81-940 …. 12.77
— v Wiegold (1991) 25 NSWLR 500 …. 12.9, 12.82
Stephens v Myers (1830) 4 Car & P 349; 172 ER 735 …. 3.25, 3.76
— v West Australian Newspapers Ltd (1994) 182 CLR 211; 124 ALR 80 …. 23.56, 23.58, 23.72, 23.73
Stephenson v Waite Tileman Ltd [1973] 1 NZLR 152 …. 12.66
Stern v Piper [1997] QB 123; [1996] 3 All ER 385 …. 23.61
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; 63 ALR 513 …. 9.47, 10.13, 20.8, 20.13,
20.14, 20.15, 20.17
Stevenson v Basham [1922] NZLR 225 …. 7.3
Stevenson, Jordan & Harrison Ltd v MacDonald & Evans [1952] 1 TLR 101 …. 20.12
Stewart v Ackland (2015) 10 ACTLR 207; 293 FLR 341 …. 13.70
— v Layton (1992) 111 ALR 687 …. 9.105
Stillman v Rusbourne [2015] NSWCA 410 …. 9.115
Stingel v Clark (2006) 226 CLR 442; 228 ALR 229 …. 14.43
Stoakes v Brydges [1958] QWN 5 …. 25.45, 25.52, 25.98
Stockdale v Hansard (1839) 9 Ad & E 1; 112 ER 1112 …. 23.20
Stocker v McElhinney (No 2) [1961] NSWR 1043; (1961) 79 WN (NSW) 541 …. 23.106
Stocks v Retirement Benefits Fund Board [2007] TASSC 8 …. 19.61
Stockwell v Victoria [2001] VSC 497 …. 25.7, 25.35, 26.39
Storey v Ashton (1869) LR 4 QB 476 …. 20.30
Stormer v Ingram (1978) 21 SASR 93 …. 25.42, 26.4
Storozuk v Commissioner for Railways [1963] SR (NSW) 581 …. 18.14
Stott v West Yorkshire Road Car Co Ltd [1971] 2 QB 651 …. 21.17
Strand Electric and Engineering Co Ltd v Brisford Entertainments Ltd [1952] 2 QB 246 …. 5.90, 5.94
Strasberg v Westfield Ltd [20012] NSWSC 689 …. 22.72
Streets Ice Cream Pty Ltd v Australian Asbestos Installations Pty Ltd [1967] 1 NSWR 50 …. 9.126
Stringer v Flehr & Walker (2003) Aust Torts Reports ¶81-718 …. 9.103
Strong v Woolworths Ltd (t/as Big W) (2012) 246 CLR 182; 285 ALR 420 …. 8.19, 9.12, 12.22, 12.24,
12.33, 12.34, 12.35, 12.40, 12.42
Stuart v Bell [1891] 2 QB 341 …. 23.40
— v Kirkland-Veenstra (2009) 237 CLR 215; 254 ALR 432 …. 9.6, 10.126, 10.129, 10.141, 10.144
Stubbings v Webb [1993] AC 498; [1993] 1 All ER 322 …. 14.43
Sturch v Willmott [1997] 2 Qd R 310 …. 15.104
Sturges v Bridgman (1879) 11 Ch D 852 …. 25.17, 25.26, 25.43, 25.60, 25.64, 25.70, 25.101
Sturton v Richardson (1844) 13 M & W 17; 153 ER 7 …. 15.6
Suley v City Joiners Pty Ltd (1970) 65 QJPR 141 …. 15.117
Sullivan v Gordon (1999) 47 NSWLR 319 …. 15.104
— v Moody (2001) 207 CLR 562; 183 ALR 404 …. 1.10, 9.1, 10.2, 10.15, 10.21, 10.24, 10.26, 10.27, 10.28,
10.29, 10.30, 10.43, 10.60, 10.99, 10.115, 10.131, 10.143, 10.145, 12.86, 20.80
Suncorp Insurance & Finance v Blakeney (1993) Aust Torts Reports ¶81-253 …. 13.61
Sungravure Pty Ltd v Meani (1964) 110 CLR 24 …. 13.24
— v Middle East Airlines Airliban SAL (1975) 134 CLR 1 …. 22.45, 22.46, 22.64, 22.73
Suosaari v Steinhardt [1989] 2 Qd R 477 …. 9.125
Sutherland Shire Council v Becker (2006) 150 LGERA 184; [2006] NSWCA 344 …. 10.21, 25.18, 25.39
— v Heyman (1985) 157 CLR 424; 60 ALR 1 …. 9.19, 10.16, 10.107, 10.122, 10.127, 10.128, 10.136,
14.24, 19.30
— v Major [2015] NSWCA 243 …. 15.152
Suvaal v Cessnock City Council (2003) 200 ALR 1 …. 8.25
Swain v Waverley Municipal Council (2005) 220 CLR 517; 213 ALR 249 …. 8.24, 11.88, 11.93
Swan v South Australia (1994) 62 SASR 532 …. 9.90
Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161; 227 ALR 46 …. 20.8, 20.17, 20.56
Swenson v Shire of Drayton [1932] St R Qd 98 …. 6.47
Swick Nominees Pty Ltd v Leroi International Inc (No 2) (2015) 48 WAR 376; 318 ALR 666; [2015]
 WASCA 35 …. 9.120, 9.124, 11.15, 11.102
Swimsure (Laboratories) Pty Ltd v McDonald [1979] 2 NSWLR 796 …. 24.99
Sydney Children’s Hospital Network (Randwick and Westmead) v X (2013) 49 Fam LR 330 …. 6.20
Sydney City Council v Bosnich [1968] 3 NSWR 725 …. 17.7
Sydney County Council v Dell’Oro (1974) 132 CLR 97; 4 ALR 417 …. 11.30
Sydney Municipal Council v Bourke [1895] AC 433 …. 25.84
Sydney Refractive Eye Surgery Centre Pty Ltd v Beaumont [2004] NSWSC 164 …. 23.130
Sydney South West Area Health Services v MD (2009) 260 ALR 702 …. 13.83
Sydney Water Corporation v Turano (2009) 239 CLR 51; 260 ALR 20 …. 10.131, 10.141, 12.64
Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354; [2002] FCAFC 157 ….
24.14
Sykes v Midland Bank Executor & Trustee Co Ltd [1971] 1 QB 113 …. 9.108
— v Reserve Bank of Australia (1998) 158 ALR 710 …. 19.108
Symes v Mahon [1922] SASR 447 …. 3.58, 3.67, 6.12
Szanto v Melville [2011] VSC 574 …. 23.97

T
T (Adult: Refusal of Treatment), Re [1993] Fam 95 …. 6.25
T J Larkins & Sons v Chelmer Holdings Pty Ltd [1965] Qd R 68 …. 19.78
Tabcorp Holdings Ltd v Dank [2011] QCA 253 …. 9.43
Tabet v Gett (2010) 240 CLR 537; 265 ALR 227; 84 ALJR 292 …. 12.1, 12.19
Taccone v Electric Power Transmission Pty Ltd [1962] Qd R 545 …. 15.65
Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 …. 19.92
Taff Vale Railway Co v Jenkins [1913] AC 1 …. 16.21
Takaro Properties Ltd v Rowling [1978] 2 NZLR 314 …. 10.10
TAL Structural Engineers Pty Ltd v Vaughan Constructions Pty Ltd [1989] VR 545 …. 18.40
Talbot and Olivier (a firm) v Witcombe (2006) 32 WAR 179 …. 10.105
Talmax Pty Ltd v Telstra Corporation Ltd [1997] 2 Qd R 444 …. 24.20, 24.26
Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; 191 ALR 449 ….
8.3, 10.1, 10.7, 10.28, 10.30, 10.31, 10.42, 10.44, 10.48, 10.50, 10.53, 10.54, 10.55, 10.56, 10.58, 10.59,
10.61, 10.62, 10.64, 10.65, 10.71, 11.39, 11.40, 11.41, 11.43
Targetts Pty Ltd v Target Australia Pty Ltd (1993) 26 IPR 51 …. 24.23
Tassone v Kirkham [2014] SADC 134 …. 22.36
Tate & Lyle Industries Ltd v Greater London Council [1983] 2 AC 509 …. 25.85
Tavener Rutledge Ltd v Trexapalm Ltd [1977] RPC 275 …. 24.31
Taylor v Director of the Serious Fraud Office [1999] 2 AC 177 …. 23.24
— v O’Connor [1971] AC 115 …. 16.36
— v Owners Strata Plan No 11564 (2014) 253 CLR 531; 306 ALR 547 …. 16.45, 16.49
— v Stratford [2004] 2 Qd R 224 …. 14.9
TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 …. 4.23, 4.30, 4.33, 4.52, 4.62, 4.64, 6.6, 6.9
Ted Brown Quarries Pty Ltd v General Quarries (Gilston) Pty Ltd (1977) 138 CLR 645 …. 19.84
Telatax Consultants v Williams [1989] 1 NZLR 698 …. 23.28
Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 632 …. 23.42
Telnikoff v Matusevitch [1992] 2 AC 343 …. 23.90
10th Cantanae Pty Ltd v Shoshana Pty Ltd (1987) 79 ALR 299 …. 24.26
Tepko Pty Ltd v Water Board (2001) 206 CLR 1; 178 ALR 634 …. 10.139, 19.18, 19.19, 19.20, 19.23,
19.24, 19.25, 19.27, 19.31, 19.36, 19.41
Tetley v Chitty [1986] 1 All ER 663 …. 25.12
Teubner v Humble (1963) 108 CLR 491 …. 15.83, 15.120, 15.124
Tharpe v Stallwood (1843) 5 Man & G 760; 134 ER 766 …. 5.8
Thatcher v Charles (1961) 104 CLR 57 …. 15.83
Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 …. 23.1, 23.71, 23.72, 23.73
Thomas v Bradbury, Agnew & Co Ltd [1906] 2 KB 627 …. 23.88
— v High (1960) SR (NSW) 401 …. 5.57
— v Iselin [1972] QWN 15 …. 15.75
— v Kula [2001] WASCA 362 …. 15.104
— v Quartermaine (1887) 18 QBD 685 …. 13.49
Thomas Brown & Sons Ltd v Fazal Deen (1962) 108 CLR 391 …. 6.67
Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574; 141 ALR 1 …. 21.5, 21.8, 22.78,
23.94
— v Canik (1998) 145 FLR 438 …. 10.105
— v Faraonio (1979) 24 ALR 1 …. 15.150
— v Johnson & Johnson Pty Ltd [1991] 2 VR 449 …. 9.123
— v Smiths Shiprepairers (North Shields) Ltd [1984] QB 405 …. 11.70
— v ‘Truth’ and ‘Sportsman’ Ltd (No 4) (1932) 34 SR (NSW) 21 …. 22.61
— v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234; 214 ALR 452 …. 9.10, 9.14, 13.15
Thompson-Schwab v Costaki [1956] 1 WLR 335; [1956] 1 All ER 652 …. 25.16
Thornton v Lessbrook Pty Ltd (t/as Transair) [2010] QSC 308 …. 16.43
— v Sweeney (2011) 59 MVR 155 …. 11.58
— v Wollondilly Mobile Engineering Pty Ltd [2012] NSWSC 621 …. 20.70
Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1; [2001] 2 All ER 513 …. 18.51,
18.56, 18.58, 18.61, 18.62
Tipperary Developments Pty Ltd v Western Australia (2009) 258 ALR 124 …. 19.4, 19.52
Tippett v Fraser (1999) 74 SASR 522 …. 17.8
TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1 …. 9.41, 9.42
TNT Management Pty Ltd v Brooks (1979) 23 ALR 345; 53 ALJR 267 …. 11.97, 12.53
Tobin v Dodd [2004] WASCA 288 …. 10.105
Todd v Swan Television and Radio Broadcasters Pty Ltd (2001) 25 WAR 284 …. 22.86
Todman v Victa Ltd [1982] VR 849 …. 9.122
Todorovic v Waller (1981) 150 CLR 402; 37 ALR 481 …. 15.25, 15.36, 15.141, 15.142
Toll Pty Ltd v Dakic [2006] NSWCA 58 …. 1.62, 12.31
Tolley v J S Fry & Sons Ltd [1931] AC 333 …. 22.14, 22.57
Toogood v Spyring (1834) 1 CM & R 181; 149 ER 1044 …. 23.33, 23.36, 23.58
Toohey v Hollier (1955) 92 CLR 618 …. 16.31, 17.10, 17.17
Toomey v John Fairfax & Sons Ltd (1985) 1 NSWLR 291 …. 22.58
Torette House Pty Ltd v Berkman (1940) 62 CLR 637 …. 25.9
Torquay Hotel Co Ltd v Cousins [1969] 2 Ch 106 …. 24.54
Tottenham Investments Pty Ltd v Carburettor Services Pty Ltd (1994) Aust Torts Reports ¶81-292 ….
9.123
Tow & Salvage Ltd v Murray [1984] 2 NZLR 144 …. 6.47
Towne v Eisner 245 US 418 (1918) …. 22.36
Trade Practices Commission v Queensland Aggregates Pty Ltd (1982) 44 ALR 391 …. 20.55
Traffic Calming Australia Pty Ltd v CTS Creative Traffic Solutions Pty Ltd [2015] VSC 741 …. 24.55
Traian v Ware [1957] VR 200 …. 25.68
Trailways Transport Ltd v Thomas (1996) 2 NZLR 443 …. 5.83
Transco plc v Stockport Metropolitan Borough Council [2003] 3 WLR 1467 …. 1.7, 25.31, 25.38
Travel Compensation Fund v Tambree (t/as R Tambree & Associates) (2005) 224 CLR 627; 222 ALR
263 …. 1.29, 1.61, 12.30, 12.31
Travers v Gloucester Corporation [1947] KB 71 …. 9.21
Travis v Vanderloos (1984) 54 LGRA 268 …. 10.10
Treloar v Wickham (1961) 105 CLR 102 …. 15.136
Trevett v Lee [1955] 1 All ER 406; [1955] 1 WLR 113 …. 25.59, 25.88
Trevitt v NSW TAFE Commission [2001] NSWCA 363 …. 3.19, 3.81, 3.83
Triggell v Pheeney (1951) 82 CLR 497 …. 23.120, 23.123, 23.124
Trobridge v Hardy (1955) 94 CLR 147; [1956] ALR 15 …. 3.46, 7.16
Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis (2007) 70 NSWLR 565 ….
20.26
Truth (NZ) Ltd v Holloway [1960] 1 WLR 997 …. 22.80, 22.88
Tuberville v Savage (1669) 1 Mod Rep 3; 86 ER 684 …. 3.22, 3.29
Tucker v McCann [1948] VLR 222 …. 11.78, 18.18
— v Tucker [1956] SASR 297 …. 11.10
Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449 …. 23.46
— v News Group Newspapers Ltd [2006] 1 WLR 3469 …. 23.132
Tweed Shire Council v Howarth [2009] NSWCA 103 …. 9.79
Twentieth Century Fox Film Corporation v South Australian Brewing Co Ltd (1996) 34 IPR 225 ….
24.22, 24.27

U
Ultramares Corporation v Touche (1931) 174 NE 441 …. 10.81
Underhill v Sherwell [1997] NSWCA 325 …. 6.31
Union Credit Bank Ltd v Mersey Docks and Harbour Board [1899] 2 QB 205 …. 5.46, 5.51
Union Transport Finance Ltd v British Car Auctions Ltd [1978] 2 All ER 385 …. 5.33
University of Wollongong v Mitchell (2003) Aust Torts Reports ¶81-708 …. 11.51
Unsworth v Commissioner for Railways (1958) 101 CLR 73 …. 21.24
Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports ¶81-127 …. 22.89
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 …. 1.35, 15.19, 15.24, 23.115, 23.126

V
Vagg v McPhee (2013) 85 NSWLR 154 …. 10.101
Vairy v Wyong Shire Council (2005) 223 CLR 422; 221 ALR 711 …. 9.6, 9.18, 11.2, 11.47, 11.58, 11.60,
13.95
Van den Heuvel v Tucker (2003) 85 SASR 512 …. 9.60
Van Gervan v Fenton (1992) 175 CLR 327; 109 ALR 283 …. 15.90
Varawa v Howard Smith & Co Ltd (1911) 13 CLR 35 …. 18.41, 18.43, 18.45
Vaughan v Benalla Shire (1891) 17 VLR 129 …. 25.7
Veivers v Connolly [1995] Qd R 326 …. 12.13
Venning v Chin (1974) 10 SASR 299; (1975) 49 ALJR 378 …. 2.9, 2.22, 6.60, 6.61
Versic v Conners (1969) 90 WN (NSW) (Pt 1) 331 …. 11.78
Victoria Park Racing & Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 …. 1.11, 1.12, 7.23,
7.24
Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222 …. 10.40
Vieright Pty Ltd v Myer Stores Ltd (1995) 31 IPR 361 …. 24.8, 24.23
Vignoli v Sydney Harbour Casino (2000) Aust Torts Reports ¶81-541 …. 3.62
Villasevil v Pickering (2001) 24 WAR 167 …. 15.86
Vincent v Peacock [1973] 1 NSWLR 466 …. 25.26
— v Woolworths Ltd [2016] NSWCA 40 …. 9.46, 11.44
Vine v Waltham Forest London Borough Council [2000] 4 All ER 169 …. 5.21
Visser v South Australian Housing Trust (1995) 65 SASR 571 …. 9.34
Vizetelly v Mudie’s Select Library Ltd [1900] 2 QB 170 …. 22.93
Voli v Inglewood Shire Council (1963) 110 CLR 74 …. 1.29, 9.91, 10.115
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 …. 22.23

W
W v Eaton [2011] TASSC 4 …. 14.43
W B Anderson & Sons Ltd v Rhodes (Liverpool) Ltd [1967] 2 All ER 850 …. 19.77
Wade Sawmill Pty Ltd v Colenden Pty Ltd (t/as Pilks Pine) [2007] QCA 455 …. 5.93
Wagstaff v Edison Bell Phonograph Corporation (1893) 10 TLR 80 …. 25.89
Waimond Pty Ltd v Byrne (1989) 18 NSWLR 642 …. 9.109
Walker v Tugend (1981) 28 SASR 194 …. 15.37
Walker-Flynn v Princeton Motors Pty Ltd [1960] SR (NSW) 488 …. 15.40
Wallace v Kam [2012] NSWCA 82 …. 12.88, 12.89
— v — (2013) 250 CLR 375; 297 ALR 383 …. 9.97, 11.77, 12.37, 12.58, 12.60, 12.61
— v Powell (2000) 10 BPR 18,481 …. 25.77
Waller v James; Waller v Hoolahan (2006) 226 CLR 136; 226 ALR 457 …. 1.11, 1.52, 1.62, 12.11, 12.12
— v Suncorp Metway Insurance Ltd [2010] 2 Qd R 560 …. 15.132
Walsh v Ervin [1952] VLR 361 …. 25.79, 25.80, 25.85, 25.95
Walter v Alltools Ltd (1944) 171 LT 371 …. 3.49
— v Selfe (1851) 4 De G & Sm 315; 64 ER 849 …. 25.40
Wann v Fire and All Risks Insurance Co Ltd [1990] 2 Qd R 596 …. 15.91
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; 109 ALR 247 …. 14.23, 14.26, 19.115
Warren v Coombes (1979) 142 CLR 531; 23 ALR 405 …. 11.96
Waterhouse v Broadcasting Station 2GB Pty Ltd [1985] 1 NSWLR 58 …. 23.59, 23.61, 23.70
Waters v Mussig [1986] 1 Qd R 224 …. 15.104
Watkins v Victoria (2010) 27 VR 543 …. 6.30, 6.31, 6.33
Watson v Buckley [1940] 1 All ER 174 …. 9.123
— v Cowen [1959] Tas SR 194 …. 4.42
— v Croft Promo-Sport Ltd [2009] 3 All ER 249 …. 25.26
— v Marshall (1971) 124 CLR 621 …. 3.47, 3.58, 3.59
— v McEwan [1905] AC 480 …. 23.24, 23.26
— v Ramsay [1960] NSWR 462 …. 15.135
Watt v Bretag (1982) 41 ALR 597; 56 ALJR 760 …. 13.46
— v Hertfordshire County Council [1954] 2 All ER 368 …. 11.67
— v Longsdon [1930] 1 KB 130 …. 23.34, 23.40
— v Rama [1972] VR 353 …. 1.22, 9.59
Wattleworth v Goodwood Road Racing Company Ltd [2004] EWHC 140 …. 9.61
Watts v Leach [1973] Tas SR 16 …. 3.80
Waugh v Kippen (1986) 160 CLR 156; 64 ALR 195 …. 9.52, 18.3, 18.13, 18.29, 18.31
Waverley Council v Ferreira (2005) Aust Torts Reports ¶81-818 …. 11.35, 13.11
Waverley Municipal Council v Swain (2002) Aust Torts Reports ¶81-694 …. 11.93
Weaver v Ward (1617) (1617) Hob 134; 80 ER 284 …. 3.3, 6.65
Webb v Bloch (1928) 41 CLR 331 …. 22.78, 23.56
— v Fox (1797) 7 Term Rep 391; 101 ER 1037 …. 5.5
Wei Fan v South Eastern Sydney Local Health District (No 2) [2015] NSWSC 1235 …. 15.53
Wells v Cooper [1958] 2 QB 265 …. 11.20
Wennhak v Morgan (1888) 20 QBD 635 …. 22.76
Wensink v Marshall (2010) 56 MVR 20 …. 11.82
Wertheim v Cheel (1885) 11 VLR 107 …. 5.31
West v Government Insurance Office (NSW) (1981) 148 CLR 62; 35 ALR 437 …. 11.98, 12.53
— v Peters (1976) 18 SASR 338 …. 2.9, 2.22
Western Australia v Ward (2002) 213 CLR 1 …. 4.9
Western Counties Manure Co v Lawes Chemical Manure Co (1874) LR 9 Ex 218 …. 24.88
Western Credits Pty Ltd v Dragan Motors Pty Ltd [1973] WAR 184 …. 5.89
Weston v Woodroffe (1985) 36 NTR 34 …. 15.125
Westripp v Baldock [1939] 1 All ER 27 …. 4.42
Wheat v E Lacon & Co Ltd [1966] AC 552 …. 9.22
Wheeler v J J Saunders Ltd [1996] Ch 19 …. 25.44
— v New Merton Board Mills Ltd [1933] 2 KB 669 …. 18.38
— v Riverside Coal Transport Co Pty Ltd [1964] Qd R 113 …. 15.45
Wherry v K B Hutcherson Pty Ltd (1987) Aust Torts Reports ¶80-107 …. 25.45, 25.49
Whitaker v Federal Commissioner of Taxation (1996) Aust Torts Reports ¶81-400 …. 15.150
White v Boulton (1791) Peake 113 …. 1.40
— v Connolly [1927] St R Qd 75 …. 3.44, 6.35
— v Jameson (1874) LR 18 Eq 303 …. 25.82
— v Johnston (2015) 87 NSWLR 77 …. 3.13
— v Jones [1995] 2 AC 207 …. 9.103, 10.104
— v Mellin [1895] AC 154 …. 24.91, 24.93, 24.96
— v Riley [1921] 1 Ch 1 …. 24.63
Whitely Ltd v Hilt [1918] 2 KB 808 …. 5.101
Whittaker v Child Support Registrar (2010) 264 ALR 473 …. 3.59
— v Rozelle Wood Products Ltd (1936) 36 SR (NSW) 204 …. 18.17, 18.26
Whitton v New South Wales [2005] NSWCA 97 …. 9.37
Whitwham v Westminster Brymbo Coal and Coke Co [1896] 1 Ch 894 …. 4.53
Wickham v Associated Pool Builders Pty Ltd (1988) 12 IPR 567 …. 24.26
Wickham Holdings Ltd v Brooke House Motors Ltd [1967] 1 WLR 295 …. 5.89
Wicks v State Rail Authority (NSW) (2010) 241 CLR 60; 267 ALR 23 …. 10.58, 10.70
Wieland v Cyril Lord Carpets Ltd [1969] 3 All ER 1006 …. 12.66
Wilchick v Marks [1934] 2 KB 56 …. 25.14
Wilkinson v Downton [1897] 2 QB 57 …. 7.1, 7.2, 7.4, 7.5, 7.6, 7.7, 14.43, 19.66
Willard King Organisation Pty Ltd v United Telecasters Sydney Ltd [1981] 2 NSWLR 547 …. 24.6
Willcox v Sing [1985] 2 Qd R 66 …. 11.91
Willett v Futcher (2005) 221 CLR 627; 221 ALR 16 …. 15.131
Willey v Synan (1937) 57 CLR 200 …. 5.15
William Leitch & Co v Leydon [1931] AC 90 …. 5.27
Williams v Birmingham Battery and Metal Co [1899] 2 QB 338 …. 16.8
— v Commissioner for Road Transport (1933) 50 CLR 258 …. 13.2
— v Hursey (1959) 103 CLR 30 …. 24.38, 24.69
— v Milotin (1957) 97 CLR 465; [1957] ALR 1145 …. 2.7, 2.10, 2.18, 12.1
— v Morland (1824) 2 B & C 910; 107 ER 620 …. 12.1
— v Natural Life Health Foods Ltd [1998] 2 All ER 577; [1998] 1 WLR 830 …. 19.24
— v Spautz (1992) 174 CLR 509; 107 ALR 635 …. 7.16, 18.41, 18.45, 18.46, 18.47, 18.50
— v Usher (1955) 94 CLR 450 …. 16.38
Williamson v Friend (1901) 1 SR (NSW) (Eq) 133 …. 25.83
Wilsher v Essex Area Health Authority [1987] QB 730 …. 12.45
Wilson v Horne (1999) 8 Tas R 363 …. 2.10, 14.18
— v Lombank Ltd [1963] 1 All ER 740 …. 5.13
— v Marshall [1982] Tas R 287 …. 5.22, 5.28
— v New South Wales (2010) 278 ALR 74 …. 4.32
— v Nilepac Pty Ltd (t/as Vision Personal Training) (Crows Nest) [2011] NSWCA 63 …. 11.68
— v Peisley (1975) 50 ALJR 207 …. 15.151
— v Pringle [1987] QB 237 …. 3.9
— v Tyneside Window Cleaning Co [1958] 2 QB 110 …. 9.38
Wilsons & Clyde Coal Co Ltd v English [1938] AC 57 …. 9.33
Wilton v Commonwealth Trading Bank of Australia [1973] 2 NSWLR 644 …. 6.61
Winchester v Fleming [1957] 4 All ER 711 …. 17.13, 17.14
Windridge Farm Pty Ltd v Grassi (2011) 254 FLR 87 …. 4.52, 4.54
Winkfield, The [1902] P 42 …. 5.89
Winky Pop Pty Ltd v Mobil Refining Australia Pty Ltd [2015] VSC 348 …. 15.46, 15.49, 25.72, 25.74
— v — [2016] VSCA 187 …. 25.72
Winsmore v Greenbank (1745) Willes 577; 125 ER 1330 …. 17.13, 24.38
Winter v Bennett [1956] VLR 612 …. 6.60
Winterbottom v Wright (1842) 10 M & W 109 …. 1.41
Wishart v Mirror Newspapers Ltd [1964] NSWR 231 …. 23.126
Wong v Maroubra Automotive Refinishers Pty Ltd [2015] NSWSC 222 …. 5.59, 5.95
— v Parkside Health NHS Trust [2003] 3 All ER 932 …. 7.5
Wood v Balfour (2011) 15 BPR 29,773 …. 19.73
Woodland v Essex County Council [2013] UKSC 66 …. 20.17
Woodridge v Sumner [1963] 2 QB 43 …. 13.66
Woods v Martins Bank Ltd [1959] 1 QB 55 …. 19.1
— v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; 186 ALR 145 …. 9.18, 11.62, 11.69, 11.70, 11.87,
13.59, 13.95
Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; 205 ALR 522 …. 1.30, 8.13,
10.15, 10.28, 10.109, 10.111, 10.112, 10.113, 10.115, 10.116, 10.117, 10.118, 14.24, 19.22
Woolley v Dunford (1972) 3 SASR 243 …. 24.43, 24.54
Woolworths Ltd v Crotty (1942) 66 CLR 603 …. 16.4
— v Perrins [2015] QCA 207 …. 9.34, 10.51, 10.72
— v Ryder (2014) 87 NSWLR 593 …. 9.12
WorkCover Queensland v Amaca Pty Ltd (2010) 241 CLR 420 …. 16.2
World Hosts Pty Ltd v Mirror Newspapers Ltd [1976] 1 NSWLR 712 …. 22.50
Wormald v Cole [1954] 1 QB 614 …. 26.24, 26.26
Worth v Gilling (1866) LR 2 CP 1 …. 26.5
Wotton v Queensland (2012) 285 ALR 1; 86 ALJR 246 …. 23.75
Wright v Cedzich (1930) 43 CLR 493 …. 17.13
— v West Australian Trustee & Agency Co Ltd [1987] VR 771 …. 16.47
Wright bht Wright v Optus Administration Pty Ltd [2015] NSWSC 160 …. 10.59
Wyld v Bertram [1970] SASR 1 …. 15.65
Wynbergen v Hoyts Corporation Pty Ltd (1997) 149 ALR 25; 72 ALJR 65 …. 13.25
Wynn v New South Wales Insurance Ministerial Corporation (1995) 184 CLR 485; 133 ALR 154 ….
15.87, 15.88
Wynn Tresidder Management Pty Ltd v Barkho [2009] NSWCA 149 …. 18.12
Wyong Shire Council v Shirt (1980) 146 CLR 40; 29 ALR 217 …. 8.14, 8.15, 8.16, 11.1, 11.35, 11.36,
11.38, 11.39, 11.46, 11.60, 11.83, 11.86

X
X v South Australia (No 2) (2005) 91 SASR 258 …. 9.90
X and Y v Pal (1991) 23 NSWLR 26 …. 1.22, 9.98
X (Minors) v Bedfordshire County Council [1995] 2 AC 633 …. 18.8, 18.17, 18.18
XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448; 57 ALR 639 …. 1.36,
4.62, 15.20, 21.7

Y
Yakamia Dairies Pty Ltd v Wood [1976] WAR 57 …. 4.53
Yates v Mobile Marine Repairs Pty Ltd [2007] NSWSC 1463 …. 21.32
Yates Property Corporation Pty Ltd (in liq) v Boland (1998) 85 FCR 84; 157 ALR 30 …. 11.15
Yepremian v Scarborough General Hospital (1980) 110 DLR (3d) 513 …. 20.69
Yonge v Toynbee [1910] 1 KB 215 …. 1.26
Yorke v Lucas (1985) 158 CLR 661 …. 19.97
Young and Harston’s Contract, Re (1885) 31 Ch D 168 …. 16.4
Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 …. 22.14, 22.16, 22.36, 22.38,
22.46, 22.59

Z
Zanker v Vartzokis (1988) 34 A Crim R 11 …. 3.21, 3.22, 3.25
Zanner v Zanner (2010) 79 NSWLR 702 …. 9.57, 11.10, 12.34, 12.36, 12.40, 12.42, 12.60, 12.87
Zheng v Cai (2009) 261 ALR 481 …. 15.134
Zhu v Treasurer of New South Wales (2004) 218 CLR 530; 211 ALR 159 …. 24.57, 24.58
Zimitat v Douglas [1979] Qd R 454 …. 3.85
Zoef v Nationwide News Pty Ltd [2015] NSWDC 232 …. 22.68
Zordan v Metropolitan (Perth) Passenger Transport Trust [1963] ALR 513 …. 16.40
Zorom Enterprises Pty Ltd (in liq) v Zabow (2007) 71 NSWLR 354 …. 20.48
Zoukra v Lowenstern [1958] VR 594 …. 13.46
Zraika (by his tutor Zraika) v Walsh (No 2) (2014) 66 MVR 588 …. 15.37
Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561 …. 20.11
Zurich Australia Insurance Ltd v Rourmanos (2013) 65 MVR 561 …. 15.76
Zwambila v Wafawarova [2015] ACTSC 171 …. 22.22
 Table of Statutes

References are to paragraph numbers

COMMONWEALTH
Australian Capital Territory (Self-Government) Act 1988
s 24(3) …. 23.23
Australian Consumer Law …. 1.50, 9.120, 9.128, 10.79, 19.3, 19.93, 19.95, 19.96, 19.97, 19.99, 19.101,
19.102, 19.104, 22.96, 22.97
Ch 3 Pt 3-5 …. 9.128
s 2 …. 19.97, 19.99, 19.113
s 2(2) …. 19.104
s 4 …. 19.107
s 4(2) …. 19.108
s 7 …. 9.128
s 7(1) …. 9.129
s 9(1) …. 9.128
s 9(2) …. 9.128
s 18 …. 1.50, 19.94, 19.98, 19.105, 19.109, 19.110, 19.113, 19.115, 22.95, 22.97, 22.98, 22.99, 24.34,
24.35, 24.36, 24.100
s 18(1) …. 19.95
s 19 …. 22.97, 22.99
s 19(2) …. 22.98
s 19(3) …. 22.98
s 19(4) …. 22.97
s 19(5) …. 22.97
s 138 …. 9.128
s 139 …. 9.128
s 140 …. 9.128
s 141 …. 9.128
 s 142 …. 9.130
s 143(1) …. 9.130
s 143(2) …. 9.130
s 236 …. 18.7, 19.110, 19.114
s 236(1) …. 19.110
s 236(2) …. 19.115
Australian Federal Police Act 1979
s 64B …. 20.20
Australian Solicitors Conduct Rules …. 9.116, 9.117
r 2.2 …. 9.117
r 4.1 …. 9.116
Broadcasting Services Act 1992 …. 22.97, 23.94
s 206 …. 22.17
Sch 5 cl 91 …. 22.91, 23.94
Civil Aviation Regulations 1988 …. 3.73
Competition and Consumer Act 2010 …. 1.50, 9.128, 19.93
Pt XI …. 19.93
s 6(3) …. 19.95, 22.96
s 87(2)(a) …. 15.4
s 131(1) …. 19.102
s 131A …. 19.102
s 137A …. 9.128
s 137B …. 19.112
s 139B(2) …. 19.97
Sch 2 …. 9.128, 9.129, 9.130, 19.93, 19.94, 22.95, 24.34
Sch 2 s 18 …. 19.92
Constitution …. 23.72, 23.73, 23.75, 23.76
s 7 …. 23.73
s 24 …. 23.73
s 51(i) …. 6.59
s 64 …. 23.73
s 128 …. 23.73
Copyright Act 1968 …. 24.37
Corporations Act 2001 …. 22.85
s 46 …. 22.85
 s 50 …. 22.85
Crimes Act 1914
s 3T …. 4.37
s 3W …. 3.66
s 3Z …. 3.70
Customs Act 1901 …. 3.73
Family Law Act 1975 …. 3.35
s 119 …. 22.76
s 120 …. 17.16
Health Insurance Act 1973 …. 15.139
s 18 …. 15.139
Industrial Relations Act 1988 …. 18.19
s 178 …. 18.19
Insurance Contracts Act 1984
s 66 …. 21.26
Judiciary Act 1903
s 77MA …. 15.144
Migration Act 1958 …. 3.73, 3.74
s 189 …. 3.74
National Consumer Credit Protection Act 2009
s 178 …. 5.16
Navigation (Loading and Unloading) Regulations 1941 …. 18.20
Parliamentary Papers Act 1907
ss 2–4 …. 23.23
Parliamentary Privileges Act 1987 …. 23.23
s 10 …. 23.23
Parliamentary Proceedings Broadcasting Act 1946
s 15 …. 23.23
Personal Property Securities Act 2009 …. 5.17
Pt 2.5 …. 5.17
s 45 …. 5.17
s 147 …. 5.17
Privacy Act 1988 …. 7.29
Royal Commissions Act 1902
s 7 …. 23.31
Safe Work Australia Act 2008 …. 9.56
Safety, Rehabilitation and Compensation Act 1988 …. 9.54
s 45 …. 21.19
Social Security Act 1991 …. 15.138
s 17(1) …. 15.138
s 1178 …. 15.138
s 1184 …. 15.138
Sydney 2000 Games (Indicia and Images) Protection Act 1996 …. 24.57
Taxation Laws Amendment (Structured Settlements and Structured Orders) Act 2002 …. 15.38
Telecommunications Act 1997
s 484 …. 6.48
Sch 3 …. 6.48
Trade Marks Act 1995
s 120 …. 24.37
s 230 …. 24.37
Trade Practices Act 1974 …. 1.50, 9.120, 9.127, 9.128, 19.3, 19.93, 19.112
Pt VA …. 9.127
s 52 …. 1.50, 19.93, 19.94, 19.98, 19.100, 22.95, 22.99, 24.34
s 65A …. 22.99
s 87CB(3) …. 21.37

AUSTRALIAN CAPITAL TERRITORY

Age of Majority Act 1974 …. 1.21
s 5 …. 6.19
Building Act 2004
Pt 6 …. 10.119
s 142 …. 14.11
Civil Law (Wrongs) Act 2002 …. 1.51, 13.41
Ch 2 Pt 2.1 …. 13.100
Ch 2 Pt 2.2 …. 13.102
Ch 2 Pt 2.2A …. 13.103
Ch 3 Pt 3.2 …. 10.69
Ch 7A …. 21.32
Ch 9 …. 22.8
Ch 14 …. 15.149
 Pt 2.4 …. 16.51
Div 9.3.1 …. 23.102
s 5 …. 11.29
s 15(2) …. 22.81
s 16(3)(a) …. 16.56, 16.57
s 16(3)(b) …. 16.44
s 16(4) …. 16.55
s 16(5) …. 16.57
s 20(1) …. 21.6
s 20(2)(a) …. 21.12
s 20(2)(b) …. 21.12
s 21(1) …. 21.16
s 21(2) …. 21.22
s 21(3) …. 21.22
s 23(a) …. 16.17
s 23(c) …. 16.18
s 23(e) …. 16.18
s 24 …. 16.3
s 26 …. 16.42
s 26(e) …. 16.40
s 27 …. 16.44
s 34 …. 10.59
s 35 …. 19.88
s 35(1) …. 10.45
s 35(2) …. 10.46
s 36(5) …. 13.61
s 40 …. 12.6
s 41 …. 12.3
s 42 …. 11.8
s 43 …. 11.34
s 43(2) …. 11.49
s 44(a) …. 11.64
s 44(b) …. 11.65
s 44(c) …. 11.66
s 45 …. 15.37
s 45(1)(a) …. 12.33
s 45(1)(b) …. 12.57
s 45(2) …. 12.39
s 45(3) …. 12.55
s 45(4) …. 12.57
s 46 …. 12.54
s 47 …. 13.26
s 50(4) …. 13.40
s 51 …. 14.9
s 92 …. 13.33, 16.45
s 94 …. 13.77
s 94(2) …. 13.78
s 95 …. 13.34
s 95(2) …. 13.35
s 95(3) …. 13.41
s 96(2) …. 13.39
s 96(3) …. 13.41
s 97 …. 13.29
s 98 …. 15.81, 16.45
s 99 …. 15.111
s 99(4) …. 15.108
s 100 …. 15.105
s 101 …. 13.6
s 102 …. 25.59
s 102(1) …. 13.6
s 102(2) …. 18.40
s 104 …. 17.9
s 107B(2) …. 21.34
s 107D(1) …. 21.35
s 107E …. 21.40
s 107F(1)(a) …. 21.41
s 110 …. 10.131
s 110(b) …. 10.138
s 111 …. 18.33
s 113 …. 10.148
s 115(d) …. 23.102
s 116 …. 23.8
s 118 …. 22.9
s 118(1) …. 22.26
s 119 …. 22.18
s 120 …. 22.48
s 121 …. 22.84
s 122 …. 22.81
s 123 …. 22.21, 22.22
s 126 …. 23.99
s 129 …. 23.103
s 132 …. 23.133
s 134(1) …. 23.2
s 134(2) …. 23.49
s 135 …. 23.7
s 136 …. 23.12
s 137(1) …. 23.17
s 137(2)(a) …. 23.21
s 137(2)(b) …. 23.29
s 138(1) …. 23.68
s 139 …. 23.65
s 139A(1) …. 23.47
s 139B …. 23.91
s 139C …. 22.93, 23.95
s 139D …. 23.97
s 139E …. 23.117
s 139F …. 23.119
s 139F(2) …. 23.120
s 139G …. 15.24, 23.114
s 139H …. 15.23, 23.113
s 139I …. 23.137
s 139M …. 23.9
s 141 …. 6.38
s 168 …. 9.17
s 168(5) …. 9.17
 s 169 …. 26.32
s 210 …. 17.16
s 210(a) …. 17.25
s 210(b) …. 17.26
s 212 …. 26.24
s 213 …. 6.47
s 214 …. 26.2, 26.35
s 218 …. 16.31, 17.12
Sch 3 …. 13.53
Civil Unions Act 2006
s 5 …. 16.17
Court Procedures Rules 2006
s 1619 …. 15.144
Crimes Act 1900
s 35(1) …. 3.33
s 212 …. 3.66
s 218 …. 3.70
Crimes (Sentencing) Act 2005 …. 3.34
Domestic Animals Act 2000
s 50 …. 26.17
s 50(3)(a) …. 26.20
s 50(3)(c) …. 26.21
s 50(3)(c)(i) …. 26.23
s 55(4)(a) …. 26.23
s 55(4)(b) …. 26.21
s 55(4)(c) …. 26.20
Domestic Violence and Protection Orders Act 2008 …. 3.35
Education Act 2004
s 7(4) …. 6.54
s 9 …. 9.69
Fair Trading (Australian Consumer Law) Act 1992
Pt 2 …. 19.93
s 11 …. 19.96
Guardianship and Management of Property Act 1991 …. 6.18
Legal Profession Act 2006 …. 9.118
Legislation Act 2001
s 169 …. 16.17
Limitation Act 1985 …. 14.1, 14.26
s 2 …. 14.31
s 4(a) …. 14.5
s 11 …. 14.26
s 11(1) …. 3.88, 4.71, 5.102, 14.10, 19.62, 25.76
s 16 …. 16.48
s 16B …. 3.88, 14.55
s 16B(2) …. 14.8, 14.19, 25.76
s 18 …. 5.104, 14.12
s 21 …. 14.64
s 21B …. 22.94
s 30 …. 14.30, 14.35
s 30A …. 14.37
s 30B …. 14.37
s 33 …. 19.91
s 33(1) …. 14.48
s 36(2) …. 14.55
s 36(5)(A) …. 14.55
s 40 …. 14.63
Dictionary …. 14.31, 14.40, 14.41
Liquor Ordinance 1975
s 79 …. 18.16
Magistrates Court Act 1930
Pt 2.3 …. 6.56
Medical Treatment (Health Directions) Act 2006
Pt 2 …. 6.26
Road Transport (Third Party Insurance) Act 2008 …. 9.65, 20.60
Sale of Goods Act 1954
s 29(2) …. 5.53
Supreme Court Act 1933
s 22 …. 22.62
Transplantation and Anatomy Act 1978
s 23 …. 6.23
Victims of Crime (Financial Assistance) Act 1983 …. 1.48
Work Health and Safety Act 2011 …. 9.49, 9.52
ss 19–26 …. 9.50
ss 31–33 …. 9.52
s 267 …. 9.52
Workers’ Compensation Act 1951 …. 9.54
s 184(2) …. 15.137

NEW SOUTH WALES

Animals Act 1977
s 4(1) …. 26.24
s 5 …. 6.47
s 7(2)(a) …. 26.2
s 7(2)(b) …. 26.35
s 10 …. 26.32
Anti-Discrimination Act 1977 …. 22.40
Casino Control Act 1922 …. 18.17
Casino Control Regulations 1995 …. 18.17
Children and Young Persons (Care and Protection) Act 1998
s 174 …. 6.23
Civil Liability Act 2002 …. 1.51, 3.78, 13.69, 15.106, 15.116, 21.36
Pt 1A …. 13.100
Pt 2 Div 7 …. 15.37
Pt 3 …. 10.69
Pt 4 …. 21.32, 21.36
Pt 8 …. 11.29
Pt 8A …. 13.103
Pt 9 …. 13.102
Pt 11 …. 15.28
s 3 …. 15.108
s 3A …. 1.30
s 3B …. 7.8, 12.3
s 3B(1)(a) …. 3.78
s 5 …. 12.6
s 5B …. 11.34, 11.37
s 5B(2) …. 11.49
s 5C(a) …. 11.64
s 5C(b) …. 11.65
s 5C(c) …. 11.66
s 5D …. 12.33, 12.60, 13.100
s 5D(1) …. 12.34
s 5D(1)(a) …. 12.35, 12.37, 12.39, 12.88
s 5D(1)(b) …. 12.57, 12.58, 12.60, 12.88
s 5D(2) …. 12.39, 12.41, 12.88
s 5D(3) …. 12.55
s 5D(4) …. 12.57, 12.58, 12.88
s 5E …. 12.54
s 5F …. 11.63, 13.53, 26.33
s 5G …. 13.53, 26.33
s 5H …. 11.63, 13.93, 26.31
s 5H …. 13.93
s 5H(2) …. 13.87
s 5I …. 13.96
s 5I(3) …. 13.100
s 5K …. 13.67
s 5L …. 13.67
s 5O …. 11.72
s 5O(1) …. 11.18
s 5P …. 13.91
s 5Q …. 20.84
s 5R …. 13.9, 13.11
s 5S …. 13.26
s 5T …. 16.44
s 12 …. 15.81, 16.45
s 12(1)(c) …. 16.45
s 12(2) …. 16.45
s 13 …. 15.74
s 14 …. 15.142
s 15 …. 15.98, 15.106
s 15(4) …. 15.103
s 15(5) …. 15.103
s 15A …. 15.106
s 15B …. 15.105, 15.106
s 15B(1) …. 15.106
s 15B(2)(b) …. 15.106
s 15C …. 15.82
s 16 …. 15.111
s 16(1) …. 15.110
s 16(2) …. 15.109
s 18 …. 15.147
s 19(1)(b) …. 16.48
s 21 …. 15.21
s 24 …. 15.37
s 82 …. 15.37
s 30(2) …. 10.70
s 30(2)(a) …. 10.70
s 31 …. 10.45, 10.46, 19.88
s 32 …. 10.59
s 32(1) …. 10.59
s 32(2) …. 10.59
s 33 …. 10.46
s 34(1) …. 21.34
s 34(2) …. 21.35, 21.36
s 34(3A) …. 21.39
s 34A …. 21.40
s 35(1)(a) …. 21.41, 21.42
s 42 …. 10.131
s 42(a) …. 10.138
s 42(b) …. 10.138
s 43 …. 18.33
s 45 …. 10.148, 10.150
s 45(1) …. 10.150
s 48 …. 13.33
s 49(1)(c) …. 11.33
s 50 …. 13.36, 13.82, 13.83
 s 50(1) …. 13.36
s 50(2) …. 13.36, 13.85
s 50(2)–(5) …. 13.35
s 52 …. 6.32, 6.34
s 54 …. 13.77
s 54(5) …. 13.78
s 56 …. 13.99
s 57(1) …. 13.99
s 58(1) …. 13.99
s 58(2) …. 13.99
s 71 …. 12.14
s 72(1) …. 4.21
s 96 …. 13.38
Sch 2 cl 1 …. 17.12
Civil Procedure Act 2005
s 100 …. 15.144
Companion Animals Act 1998
s 16(2) …. 26.20
ss 25–28 …. 26.17
s 25(2) …. 26.23
s 28 …. 26.21
Compensation to Relatives Act 1897
s 3(1) …. 16.3
s 3(3) …. 16.42
s 4(1) …. 16.25
s 4(2) …. 16.17
s 5 …. 16.25
s 6B(1) …. 16.25
s 7(1) …. 16.18, 16.19
s 7(4) …. 16.17
Contracts Review Act 1980 …. 13.104
Conveyancing Act 1919
s 120A(1) …. 4.8
s 177 …. 25.20
s 179 …. 25.21
Crimes Act 1900
s 78H …. 7.17
Crimes (Domestic and Personal Violence) Act 2007 …. 3.35
s 13(1) …. 3.33
Defamation Act 1974 …. 22.5
s 13 …. 23.99
s 16 …. 23.11, 23.14
Defamation Act 2005 …. 22.8, 22.85
Pt 3 Div 1 …. 23.102
s 3(d) …. 23.102
s 4 …. 23.8
s 6 …. 22.9
s 6(2) …. 22.26
s 7 …. 22.18
s 8 …. 22.48
s 9 …. 22.84
s 10 …. 22.81
s 11 …. 22.21
s 17 …. 23.103
s 20 …. 23.133
s 21(1) …. 22.62
s 21(2) …. 22.62
s 22(3) …. 23.140
s 24(1) …. 23.2
s 24(2) …. 23.49
s 25 …. 23.7
s 26 …. 23.12, 23.70
s 27(1) …. 23.17
s 27(2)(a) …. 23.21
s 27(2)(b) …. 23.29
s 28(1) …. 23.68
s 29 …. 23.65
s 30(1) …. 23.47
s 31 …. 23.91
s 32 …. 22.93, 23.95
 s 33 …. 23.97
s 34 …. 23.117
s 35 …. 23.119
s 35(2) …. 23.120
s 36 …. 15.24, 23.114
s 37 …. 15.23, 23.113
s 38 …. 23.137
s 42 …. 23.9
Dust Diseases Tribunal Act 1989
s 12A …. 14.5
s 12B …. 16.55
Education Act 1990
s 21B(3) …. 9.69
s 35(2A) …. 6.54
s 47(h) …. 6.54
Employees Liability Act 1991
s 3 …. 21.26
s 5 …. 20.88
Encroachment of Buildings Act 1922 …. 4.70
Fair Trading Act 1987
Pt 3 …. 19.93
s 32 …. 19.96
s 87A …. 19.97
Guardianship Act 1987 …. 6.18
s 37 …. 6.24
Home Building Act 1989
Pt 2C …. 10.119
Interpretation Act 1987
s 21C …. 16.17
Judicial Officers Act 1986
Pt 8A …. 6.56
Law Enforcement (Powers and Responsibilities) Act 2002
ss 9–10 …. 4.37
s 99 …. 3.66
s 100 …. 3.70
Law Reform (Marital Consortium) Act 1984
s 3 …. 16.31
Law Reform (Miscellaneous Provisions) Act 1944
s 2 …. 16.51
s 2(2) …. 22.81
s 2(2)(a)(i) …. 16.56
s 2(2)(a)(ii) …. 16.54
s 2(2)(c) …. 16.57
s 2(2)(d) …. 16.54
Law Reform (Miscellaneous Provisions) Act 1946
s 5(1)(a) …. 21.6
s 5(1)(b) …. 21.12, 21.13
s 5(1)(c) …. 21.16
s 5(2) …. 21.22
Law Reform (Miscellaneous Provisions) Act 1965
s 5 …. 13.6
s 9(1) …. 13.6, 25.59
s 12 …. 21.12
s 13 …. 16.44
Law Reform (Vicarious Liability) Act 1983 …. 20.22, 20.88
s 8 …. 20.20
Legal Profession Uniform Law Application Act 2014 …. 9.118
s 61 …. 15.149
s 62 …. 15.149
Limitation Act 1969 …. 14.1
s 6A …. 14.45
s 7(a) …. 14.5
s 11(3) …. 14.31, 14.42
s 11(3)(b) …. 14.40
s 11(3)(b)(i) …. 14.41
s 14(1)(b) …. 3.88, 4.71, 5.102, 14.10, 19.62, 25.76
s 14B …. 22.94
s 18A …. 3.88, 14.8, 25.76
s 21 …. 5.104, 14.12
s 26 …. 14.64
 s 50A …. 14.19
s 50C …. 14.8, 14.19, 14.33, 14.56, 25.76
s 50C(1)(b) …. 14.20
s 50D …. 14.19
s 50F …. 14.33
s 52 …. 14.30
s 55 …. 19.91
s 55(1) …. 14.48
s 56 …. 14.48
s 56A …. 22.94
s 58 …. 14.56
s 60C …. 14.56
ss 60F–60J …. 14.56
s 62A(2) …. 14.56
Limitation Amendment (Child Abuse) Act 2016 …. 14.45
Liquor Act 1982 …. 9.24
Local Government Act 1993
s 199 …. 4.36
Mental Health Act 1990 …. 10.71
Mental Health Act 2007
s 22 …. 3.73
Minors (Property and Contracts) Act 1970 …. 1.21, 6.19
s 9 …. 6.19
Motor Accidents Act 1988 …. 15.116
Motor Accidents Compensation Act 1999 …. 9.65
Ch 2 …. 20.60
s 81 …. 15.37
s 138 …. 13.44
s 138(2)(c) …. 13.29
s 140 …. 13.61
s 142 …. 17.9
s 144 …. 15.22
Occupational Health and Safety Regulation 2001 …. 18.12
Partnership Act 1892
s 10(1) …. 20.4
Prisons Act 1952
s 16(2) …. 6.50
Protection of the Environment Operations Act 1997 …. 10.145
s 91 …. 10.142
Registered Clubs Act 1976 …. 10.37
s 44A …. 10.37
Sale of Goods Act 1923
s 28(2) …. 5.53
Scaffolding and Lifts Act 1912 …. 18.23, 18.35
Strata Schemes Management Act 1996
s 62 …. 18.30
Strata Titles Act 1973 …. 18.15
s 68 …. 18.15
Uniform Civil Procedure Rules 2005
Pt 15 r 21(2) …. 23.136
Victims Rights and Support Act 2013 …. 3.34
Victims Support and Rehabilitation Act 1996 …. 1.48
Water Traffic Regulations …. 20.58
Work Health and Safety Act 2011 …. 9.49, 9.52
ss 19–26 …. 9.50
ss 31–33 …. 9.52
s 267 …. 9.52
Workers Compensation Act 1987 …. 9.54
s 151A(2) …. 15.137
s 151Q …. 15.37
s 151R …. 15.22
Workplace Injury Management and Workers Compensation Act 1998 …. 9.54

NORTHERN TERRITORY
Adult Guardianship Act 1988 …. 6.18
Advance Personal Planning Act 2013
Pt 2 …. 6.26
s 53 …. 6.22
Age of Majority Act 1981 …. 1.21
s 4 …. 6.19
Building Act 1993 …. 21.30
s 160 …. 14.11
Compensation (Fatal Injuries) Act 1974
s 4(2)(a) …. 16.17
s 4(2)(c) …. 16.18
s 4(2)(d) …. 16.18
s 5 …. 16.45
s 5(1) …. 16.46
s 7 …. 16.3
s 7(2) …. 16.9
s 8 …. 16.25
s 10(3)(c) …. 16.31
s 10(3)(f) …. 10.30
s 10(4) …. 16.42
s 10(4)(h) …. 16.38
s 10(5) …. 16.9
s 11(1) …. 16.44
s 13(1) …. 16.25
s 17 …. 16.48
Consumer Affairs and Fair Trading Act 1990
Pt 4 …. 19.93
s 31 …. 19.96
s 43 …. 19.97
Criminal Code Act 1983 …. 3.67
s 189(2) …. 3.33
s 441 …. 3.70
De Facto Relationships Act 1991
s 3A(3) …. 16.17
Defamation Act 2006 …. 22.8
Pt 3 Div 1 …. 23.102
s 2(d) …. 23.102
s 3 …. 23.8
s 5 …. 22.9
s 5(2) …. 22.26
s 6 …. 22.18
 s 7 …. 22.48
s 8 …. 22.84
s 9 …. 22.81
s 10 …. 22.21
s 16 …. 23.103
s 19 …. 23.133
s 21(1) …. 23.2
s 21(2) …. 23.49
s 22 …. 23.7
s 23 …. 23.12
s 24(1) …. 23.17
s 24(2)(a) …. 23.21
s 24(2)(b) …. 23.29
s 25(1) …. 23.68
s 26 …. 23.65
s 27 …. 23.48
s 27(1) …. 23.47
s 28 …. 23.91
s 29 …. 22.93, 23.95
s 30 …. 23.97
s 31 …. 23.117
s 32 …. 23.119
s 32(2) …. 23.120
s 33 …. 15.24, 23.114
s 34 …. 15.23, 23.113
s 35 …. 23.137
s 39 …. 23.9
Domestic and Family Violence Act 2007 …. 3.35
Education Act 1979
s 38(2) …. 9.69
Education Act 2015
s 162 …. 6.54
Emergency Medical Operations Act 1973
s 3 …. 6.23, 6.24
Encroachment of Buildings Act 1982 …. 4.70
Interpretation Act 1978
s 19A …. 16.17
Juries Act 1963
s 6A …. 22.62
Law of Property Act 2000
s 115(1) …. 4.8
s 162 …. 25.20
Law Reform (Miscellaneous Provisions) Act 1956
Pt II …. 16.51
s 5(2) …. 22.81
s 6(1)(a) …. 16.56
s 6(1)(c)(i) …. 16.57
s 6(1)(c)(ii) …. 16.54
s 6(1)(c)(iii) …. 16.54
s 6(2) …. 16.55
s 12(2) …. 21.6
s 12(3)(b) …. 21.12
s 12(4) …. 21.16
s 13 …. 21.22
s 15(1) …. 13.6
s 16(1) …. 13.6, 25.59
s 17(2) …. 16.44
s 18 …. 17.9
s 22A …. 21.26
s 32 …. 26.17
Legal Profession Act 2006 …. 9.118
Legislative Assembly (Powers and Privileges) Act 1992
s 4 …. 23.23
s 6 …. 23.23
Limitation Act 1981 …. 14.1
s 4(1) …. 14.31, 14.40, 14.41, 14.42
s 5 …. 14.5
s 11(1)(b) …. 4.71
s 12(1)(b) …. 3.88, 5.102, 14.8, 14.10, 19.62, 25.76
s 12(2)(a) …. 14.5
 s 12(2)(b) …. 22.94
s 17 …. 16.48
s 19(1) …. 5.104, 14.12
s 19(2) …. 5.104, 14.12
s 24 …. 14.64
s 36 …. 14.30, 14.35
s 42 …. 19.91
s 42(1) …. 14.48
s 44 …. 14.57, 14.63
s 44A …. 22.94
Magistrates Act 1977
s 19A …. 6.56
Motor Accidents (Compensation) Act 1979 …. 1.47, 9.66, 20.60
s 5 …. 17.12, 17.23, 20.60
s 5(1) …. 17.2
Personal Injuries (Civil Claims) Act 2003
s 8 …. 14.9
s 12 …. 15.37
Personal Injuries (Liabilities and Damages) Act 2003 …. 1.51, 13.53
Pt 4 Div 6 …. 15.37
s 3 …. 13.33
s 4 …. 12.3
s 7 …. 13.102
s 7A …. 13.103
s 8 …. 11.29, 13.100
s 9 …. 9.17
s 10 …. 13.77
s 10(2) …. 13.78
s 14 …. 13.34
s 14(2) …. 13.35
s 15 …. 13.38
s 15(2) …. 13.39
s 16 …. 13.33
s 17 …. 13.40
s 19 …. 15.21
 s 20 …. 15.81, 16.45
s 22 …. 15.142
s 23 …. 15.98
s 23(3) …. 15.103
s 23(4) …. 15.103
s 23(5) …. 15.91
s 24 …. 15.108
s 27 …. 15.109, 15.111
s 27(2) …. 15.110
s 29 …. 15.147
s 32 …. 15.37
Police Administration Act 1978
s 119 …. 4.37
s 123 …. 3.66
s 148C …. 20.20
Proportionate Liability Act 2005 …. 21.32
s 3 …. 21.34
s 4(2) …. 21.34
s 6(1) …. 21.35
s 7 …. 21.40
s 13(1)(a) …. 21.41
Return to Work Act 1986 …. 9.54
s 52 …. 15.137, 17.23
s 52(1) …. 1.46
Sale of Goods Act 1954
s 28(2) …. 5.53
Sentencing Act 1995 …. 3.34
Supreme Court Act 1979
s 84 …. 15.144
Supreme Court Rules 1987
O 40.10 …. 23.136
Victims of Crime Assistance Act 2006 …. 1.48
Work Health Act 1986
s 52 …. 17.2, 17.12
Work Health and Safety (National Uniform Legislation) Act 2011 …. 9.49, 9.52
 ss 19–26 …. 9.50
ss 31–33 …. 9.52
s 267 …. 9.52

QUEENSLAND
Acts Interpretation Act 1954
s 32DA(5) …. 16.17
s 36 …. 16.17
Age of Majority Act 1974 …. 1.21
Anti-Discrimination Act 1991 …. 22.40
Civil Liability Act 2003 …. 1.51, 3.78, 11.29, 11.44, 13.101, 15.102
Ch 2 Pt 2 …. 21.32
Ch 2 Pt 3 Div 2 Subdiv 2 …. 13.103
Ch 2 Pt 3 Div 2 Subdiv 3 …. 13.102
Ch 2 Pt 5 …. 15.28
Ch 3 Pt 4 …. 15.37
s 4 …. 3.78
s 5 …. 12.3
s 7(3) …. 1.30
s 9 …. 11.34
s 9(2) …. 11.49
s 10(a) …. 11.64
s 10(b) …. 11.65
s 10(c) …. 11.66
s 11(1)(a) …. 12.41
s 11(2) …. 12.33, 12.39, 12.41, 12.42
s 11(3) …. 12.55
s 11(4) …. 12.60
s 12 …. 12.54
s 13 …. 11.63, 13.53, 26.33
s 14 …. 13.53, 26.33
s 14(2) …. 13.55
s 15 …. 11.63, 13.87, 26.31
s 16 …. 13.100
s 18 …. 13.67
s 19 …. 13.67
s 20 …. 13.84
s 21 …. 11.73, 13.87
s 21(1) …. 13.94
s 22 …. 11.72, 13.83
s 22(1) …. 11.18, 11.72, 13.82
s 22(2) …. 13.85
s 22(5) …. 13.86
s 23 …. 13.9
s 24 …. 13.26
s 25 …. 11.29
s 26 …. 11.29
s 26(1)(a) …. 11.29
s 27 …. 11.29
s 27(1)(a) …. 11.29
s 28(1)(a) …. 21.34
s 28(3)(b) …. 21.39
s 30(1) …. 21.35
s 31(1) …. 21.41
s 32D …. 21.40
s 32E …. 21.40
s 34 …. 10.133
s 35 …. 10.131
s 35(b) …. 10.138
s 36 …. 18.33
s 37 …. 10.148
s 45 …. 13.77, 13.79
s 45(2) …. 13.78
s 45(3) …. 13.78
s 45(4) …. 13.78
s 46(1)(c) …. 11.33
s 47 …. 13.34
s 47(3) …. 13.35
s 47(4) …. 13.40
s 47(5) …. 13.44
 s 48 …. 13.38
s 48(3) …. 13.39
s 48(4) …. 13.40
s 48(5) …. 13.61
s 49 …. 13.38, 13.44
s 49A …. 12.14
s 51 …. 15.108
s 52 …. 15.21
s 52(2)(a) …. 7.8
s 53 …. 15.44
s 54 …. 15.81, 16.45
s 55 …. 15.74
s 56 …. 15.82
s 57 …. 15.142
s 58 …. 17.9, 17.11
s 58(1)(a) …. 16.31
s 59 …. 15.98, 15.100
s 59(1) …. 15.99
s 59(3) …. 15.91
s 59A …. 15.105
s 60 …. 15.147
s 61 …. 15.112
s 61(1)(c) …. 15.112
s 62 …. 15.109
s 65 …. 15.37
s 73 …. 8.26, 11.88, 15.152
Sch 1 …. 11.29
Sch 2 …. 3.78, 11.29, 12.6, 13.33, 20.84
Dictionary …. 13.86
Civil Liability Regulation 2014
s 7 …. 15.112
Sch 1 …. 13.101
Sch 2 …. 13.101
Sch 3 s 2 …. 15.112
Sch 3 s 3 …. 15.113
 Sch 3 s 5 …. 15.113
Sch 3 s 7 …. 15.113
Sch 3 s 8 …. 15.114
Sch 3 s 9 …. 15.115
Sch 3 s 10 …. 15.114
Sch 4 …. 15.112, 15.114, 15.115
Sch 8 …. 15.113, 15.114
Civil Proceedings Act 2011 …. 16.5
s 8 …. 25.102
s 58 …. 15.144, 15.145
s 60 …. 15.85
s 61 …. 15.142
s 62 …. 16.16, 16.19
s 62(b) …. 16.18
s 62(d) …. 16.18
s 63 …. 16.17
s 64 …. 16.3, 16.5, 16.13
s 65(1) …. 16.25
s 65(2) …. 16.25
s 67 …. 16.38
s 67(6) …. 16.38
s 67(7) …. 16.17
s 68 …. 16.38
s 70(1) …. 16.42
Coal Mining Safety and Health Act 1999 …. 9.51
Common Law Practice Act 1867
s 72 …. 15.145
Criminal Code 1899 …. 3.37, 3.41, 3.43, 3.44, 3.67, 5.72, 6.35, 6.44
s 5 …. 6.32
s 6 …. 3.43
s 230 …. 25.1
s 245 …. 3.4, 3.19, 3.37, 3.39, 3.40, 3.41, 3.42, 6.5, 6.32
s 260 …. 3.70
s 269 …. 3.44, 6.35
s 271 …. 3.45, 6.32
 s 272 …. 3.45
s 273 …. 3.45
ss 274–276 …. 5.72
s 275 …. 3.45
s 277 …. 3.45, 4.50, 6.37
s 278 …. 3.45, 4.50
s 355 …. 3.49
s 359E(1) …. 3.33
s 534 …. 24.75
s 546 …. 3.70
s 647 …. 14.39
Defamation Act 1889 …. 22.5
s 20 …. 23.99
Defamation Act 2005 …. 22.8
Pt 3 Div 1 …. 23.102
s 3(d) …. 23.102
s 6 …. 22.9
s 6(2) …. 22.26
s 7 …. 22.18
s 8 …. 22.48
s 9 …. 22.84
s 10 …. 22.81
s 11 …. 22.20, 22.21
s 11(1) …. 22.20
s 11(2) …. 22.20
s 11(3) …. 22.21
s 17 …. 23.103
s 20 …. 23.133
s 21(1) …. 22.62
s 22(2) …. 22.62
s 22(3) …. 23.140
s 24(1) …. 23.2
s 24(2) …. 23.49
s 25 …. 23.7
s 26 …. 23.12
 s 27(1) …. 23.17
s 27(2)(a) …. 23.21
s 27(2)(b) …. 23.29
s 28(1) …. 23.68
s 29 …. 23.65
s 30(1) …. 23.47
s 31 …. 23.91
s 32 …. 22.93, 23.95
s 33 …. 23.97
s 34 …. 23.117
s 35 …. 23.119
s 35(2) …. 23.120
s 36 …. 15.24, 23.114
s 37 …. 15.23, 23.113
s 38 …. 23.137
s 42 …. 23.9
Sch 5 …. 23.8
District Court of Queensland Act 1967
s 68(1)(b)(xii) …. 4.65
Domestic and Family Violence Protection Act 2012 …. 3.35
Education (General Provisions) Act 2006
s 9 …. 9.69
Electricity Act 1994
s 137 …. 4.36
s 138 …. 4.36
Factories and Shops Act 1960 …. 18.31
Fair Trading Act 1989
Pt 3 …. 19.93
s 20 …. 19.96
s 95 …. 19.97
Fire and Emergency Services Act 1990
s 53 …. 4.36
Factories and Shops Act 1960 …. 18.31
Forensic Disability Act 2011 …. 14.39
Guardianship and Administration Act 2000 …. 6.18
 s 63 …. 6.24
Hospital and Health Boards Act 2013
s 88(2) …. 23.23
Invasion of Privacy Act 1971 …. 6.50
Law Reform Act 1995
Pt 5 …. 13.101
s 5 …. 6.61, 13.6, 16.44
s 6(a) …. 21.6
s 6(b) …. 21.12
s 6(c) …. 21.16
s 7 …. 21.22
s 10(1) …. 13.6, 25.59
s 10(5) …. 16.44
s 13 …. 17.11
s 17 …. 6.19
Legal Profession Act 2007 …. 9.118
Limitation of Actions Act 1974 …. 14.1, 14.36
s 5 …. 16.49
s 5(2) …. 14.31, 14.35, 14.39
s 5(3) …. 14.39
s 7 …. 14.5
s 10(1)(a) …. 3.88, 4.71, 5.102, 14.10, 19.62, 25.76
s 10AA …. 22.94
s 11 …. 3.88, 14.8, 16.48, 25.76
s 11(1) …. 16.49
s 11(2) …. 14.5, 16.49
s 12(1) …. 5.104, 14.12
s 12(2) …. 5.104, 14.12
s 29 …. 14.30, 14.35
s 30(1)(a) …. 14.58
s 30(1)(b) …. 14.59
s 30(1)(c) …. 14.59
s 30(2) …. 14.59
s 31(2) …. 14.58
s 32A …. 22.94
 s 38 …. 19.91
s 38(1) …. 14.47
s 40 …. 14.64
Magistrates Act 1991
s 51 …. 6.56
Mental Health Act 2000 …. 14.39
Motor Accident Insurance Act 1994 …. 9.65
Pt 3 …. 20.60
s 55 …. 15.22
s 56 …. 11.88
Nature Conservation Act 1992 …. 5.17, 10.125
s 142(3) …. 10.125
s 142(7) …. 10.125
Neighbourhood Disputes Resolution Act 2011
Pt 5 …. 25.22
Personal Injuries Proceedings Act 2002 …. 14.9
s 9(3) …. 14.9
s 20C …. 14.36
s 43 …. 14.9
s 56 …. 15.149
Petroleum and Gas (Production and Safety) Act 2004 …. 9.51
Police Powers and Responsibilities Act 2000
s 19 …. 4.37
s 365 …. 3.66
Police Service Administration Act 1990
s 10.5 …. 20.20
Powers of Attorney Act 1998
Ch 3 …. 6.26
Pt 3 …. 6.26
Property Law Act 1974
Pt 11 …. 4.70
s 102(1) …. 4.8
s 178 …. 25.21
s 179 …. 25.20
s 185(1) …. 4.70
 s 186(1) …. 4.70
Public Health Act 2005
s 213B …. 6.21
Queensland and Construction Commission Act 1991
s 67AZN …. 10.119
Sch 1B …. 10.119
Residential Tenancies Act 1994
Pt 3 …. 4.6
Sale of Goods Act 1896
s 27(2) …. 5.53
Succession Act 1981
s 15(1) …. 10.100
s 66 …. 16.51
s 66(2) …. 22.81
s 66(2)(b) …. 16.56
s 66(2)(a) …. 16.54
s 66(2)(d)(i) …. 16.57
s 66(2)(d)(ii) …. 16.54
s 66(2A) …. 16.55
s 66(2B) …. 16.55
Supreme Court Act 1995
s 17 …. 16.13
Transplantation and Anatomy Act 1979
s 20 …. 6.23
Transport Operations (Rail Safety) Act 2010 …. 9.51
Transport Operations (Road Use Management) Act 1995
s 80(9B) …. 6.48
Transport Operations (Road Use Management — Road Rules) Regulation 1999
s 70 …. 13.24
Victims of Crime Assistance Act 2009 …. 1.48, 3.34, 3.39
Work Health and Safety Act 2011 …. 9.49, 9.51, 9.52, 18.16
s 17 …. 18.16
ss 19–26 …. 9.50
ss 31–33 …. 9.52
s 267 …. 9.52
Workers’ Compensation and Rehabilitation Act 2003 …. 9.54
Ch 5 Pt 9 Div 4 …. 15.37
s 207B …. 15.137
s 306B …. 15.22

SOUTH AUSTRALIA
Acts Interpretation Act 1915
s 16 …. 20.22
Age of Majority (Reduction) Act 1971 …. 1.21
s 3 …. 6.19
Building Work Contractors Act 1995
s 32 …. 10.119
Civil Liability Act 1936 …. 1.51
s 3 …. 12.6, 13.33, 15.81, 15.108, 15.142, 16.17
s 18 …. 26.2, 26.24, 26.35
s 18(2) …. 26.32
s 18(6) …. 26.32
s 20 …. 9.17
s 23 …. 16.3
s 24 …. 16.25
s 24(2aa) …. 16.42
s 25 …. 16.48
s 25(1) …. 16.25
s 27(1) …. 16.25
s 28 …. 16.30
s 29 …. 16.30
s 31 …. 11.8
s 31(1) …. 11.18
s 31(2) …. 11.27
s 32 …. 11.34
s 32(2) …. 11.45
s 33 …. 10.59, 10.69, 10.70
s 34 …. 12.33
s 36 …. 11.63, 13.53, 26.31
s 37 …. 13.53, 26.33
s 37(3) …. 13.56
s 38 …. 11.63, 13.87, 26.33
s 39 …. 13.100
s 40 …. 11.20
s 41(1) …. 11.18
s 41(2) …. 13.85
s 41(5) …. 13.91
s 42 …. 10.148, 11.72, 13.82
s 43 …. 13.77
s 43(1) …. 13.78
s 43(2) …. 13.78
s 43(3) …. 13.78
s 44 …. 13.9
s 45 …. 16.44
s 46 …. 13.34
s 46(2) …. 13.35
s 46(3) …. 13.40
s 46(4) …. 13.44
s 47 …. 13.38, 13.45
s 47(2) …. 13.39
s 47(2)(b) …. 13.45
s 47(3) …. 13.40
s 47(5) …. 13.44, 13.45
s 47(6) …. 13.61
s 49 …. 13.29, 13.45
s 51 …. 7.8
s 51(a)(ii) …. 3.78
s 52(1) …. 15.110
s 52(2) …. 15.109
s 53 …. 10.69
s 53(1) …. 10.70
s 53(1)(a) …. 10.70
s 53(2) …. 10.45
s 53(3) …. 10.46
s 54 …. 15.81
 s 54(3) …. 16.45
s 55 …. 15.142
s 56 …. 15.147
s 56A …. 15.82
s 57 …. 15.131.
s 58 …. 15.98
s 59 …. 21.26
s 65 …. 16.31, 17.11
s 66 …. 16.27
s 67 …. 12.14
s 68 …. 17.16
s 68(a) …. 17.25
s 74 …. 11.29, 13.100
s 74A …. 13.103
Civil Wrongs Liability Act 1936
s 68(b) …. 17.26
s 68(c) …. 17.26
Community Welfare Act 1972 …. 10.29
Consent to Treatment and Palliative Care Act 1995
s 3 …. 6.19
s 4 …. 6.19
s 6 …. 6.19
s 12 …. 6.19
s 15 …. 9.97
Consent to Medical Treatment and Palliative Care Act 1995
s 8 …. 6.26
s 13 …. 6.23
Constitution Act 1934
s 38 …. 23.23
Criminal Law Consolidation Act 1935
s 19AA(2) …. 3.33
s 271 …. 3.70
Criminal Law (Sentencing) Act 1988 …. 3.34
Crown Proceedings Act 1972
s 10(2) …. 20.22
Crown Proceedings Act 1992 …. 20.22
Defamation Act 2005 …. 22.8
Pt 3 Div 1 …. 23.102
s 3(d) …. 23.102
s 4 …. 23.8
s 6 …. 22.9
s 6(2) …. 22.26
s 7 …. 22.18
s 8 …. 22.48
s 9 …. 22.84
s 10 …. 22.81
s 11 …. 22.21
s 17 …. 23.103
s 20 …. 23.133
s 22(1) …. 23.2
s 22(2) …. 23.49
s 23 …. 23.7
s 24 …. 23.12
s 25(1) …. 23.17
s 25(2)(a) …. 23.21
s 25(2)(b) …. 23.29
s 26(1) …. 23.68
s 27 …. 23.65
s 28(1) …. 23.47
s 29 …. 23.91
s 30 …. 22.93, 23.95
s 31 …. 23.97
s 32 …. 23.117
s 33 …. 23.119
s 33(2) …. 23.120
s 34 …. 15.24, 23.114
s 35 …. 15.23, 23.113
s 36 …. 23.137
Development Act 1993 …. 21.30
s 73 …. 14.11
Dog and Cat Management Act 1995
s 66 …. 26.17
s 66(3)(a) …. 26.20
s 66(3)(c) …. 26.23
s 66(4) …. 26.21
Education Act 1972
s 75(2a) …. 9.69
Encroachments Act 1944 …. 4.70
Fair Trading Act 1987
Pt 3 …. 19.93
s 18 …. 19.96
Family Relationships Act 1975
s 11 …. 16.17
s 11A …. 16.17
Guardianship and Administration Act 1993 …. 6.18
Intervention Orders (Prevention of Abuse) Act 2009 …. 3.35
Juries Act 1927
s 5 …. 22.62
Law of Property Act 1936
s 22 …. 25.21
s 24B …. 4.8
Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001
Pt 3 …. 21.32
s 3 …. 13.6
s 7 …. 25.59
s 7(1) …. 13.6
s 7(2) …. 13.6
s 7(3)(a) …. 17.9
Legal Practitioners Act 1981 …. 9.118
Limitation of Actions Act 1936 …. 14.1, 14.12
s 3(2) …. 21.34
s 3(2)(b) …. 21.35
s 5(2) …. 21.12
s 5(3) …. 21.12
s 6(1) …. 21.16
 s 6(4) …. 14.65
s 6(5) …. 21.22
s 6(7) …. 21.22
s 8(2) …. 21.41
s 12(1) …. 21.6, 21.12
s 12(2)(b) …. 21.12
s 12(3) …. 21.12
s 25 …. 14.49, 19.91
s 35 …. 4.71
s 35(c) …. 3.88, 5.102, 14.10, 19.62, 25.76
s 36 …. 3.88, 14.8, 25.76
s 37 …. 22.94
s 45 …. 14.30, 14.35
s 45(2) …. 14.31, 14.40
s 45A …. 14.37
s 46 …. 14.42
s 47 …. 14.5
s 48 …. 14.57, 14.63
Motor Vehicles Act 1959 …. 9.65
Pt 4 …. 20.60
s 113A …. 15.22
Occupational Health, Safety and Welfare Act 1986 …. 18.14
Police Act 1998
s 65 …. 20.20
Recreational Services (Limitation of Liability) Act 2002
s 5 …. 13.67
Return to Work Act 2014 …. 9.54
s 75 …. 15.137
Sale of Goods Act 1895
s 25(2) …. 5.53
Summary Offences Act 1953
s 72B …. 4.37
s 75 …. 3.66
s 78 …. 3.66
Supreme Court Act 1935
 s 30BA …. 15.37
s 30C …. 15.144
Supreme Court Rules
O 78.03 …. 23.136
Survival of Causes of Action Act 1940
s 2 …. 16.51
s 2(2) …. 22.81
s 3(1)(a) …. 16.54
s 3(1)(b) …. 16.56
s 3(1)(d) …. 16.57
s 3(2) …. 16.55
s 3(3) …. 16.55
Victims of Crime Act 2001 …. 1.48
Volunteers Protection Act 2001 …. 13.102
Work Health and Safety Act 2012 …. 9.49, 9.52
ss 19–26 …. 9.50
ss 31–33 …. 9.52
s 267 …. 9.52
Wrongs Act 1936
s 4 …. 12.3
s 34(1)(b) …. 12.57
s 34(2) …. 12.39
s 34(3) …. 12.55
s 34(4) …. 12.57
s 35 …. 12.54

TASMANIA
Administration and Probate Act 1935
s 27 …. 16.51
s 27(3A) …. 16.55
s 27(3B) …. 16.55
s 27(3)(a) …. 16.56
s 27(3)(c)(i) …. 16.57
s 27(3)(c)(ii) …. 16.54
s 27(3)(c)(iii) …. 16.54
Age of Majority Act 1973 …. 1.21
s 3 …. 6.19
Australian Consumer Law (Tasmania) Act 2010
Pt 2 …. 19.93
s 10 …. 19.96
s 28 …. 19.97
Building Act 2000
s 255 …. 14.11, 14.25
s 256 …. 14.11, 14.25
Civil Liability Act 2002 …. 1.51
Pt 8 …. 10.69
Pt 8A …. 11.29, 13.100
Pt 8B …. 13.103
Pt 9A …. 21.32
Pt 10 …. 13.102
s 3 …. 15.108
s 3A …. 1.30
s 3B …. 7.8, 12.3
s 3B(1)(a) …. 3.78
s 3C …. 20.84
s 5 …. 13.34
s 5(1) …. 13.35
s 5(2) …. 13.40
s 5(4) …. 13.35
s 5(5) …. 13.33
s 5(6) …. 13.33
s 6 …. 13.77
s 6(2) …. 13.78
s 8 …. 15.37
s 9 …. 12.6
s 11 …. 11.34
s 11(2) …. 11.49
s 12(a) …. 11.65
s 12(b) …. 11.66
s 13 …. 12.33
s 13(1)(b) …. 12.57
s 13(2) …. 12.39
s 13(3) …. 12.55
s 13(4) …. 12.57
s 14 …. 12.54
s 15 …. 11.63, 13.53, 26.33
s 16 …. 13.53, 26.33
s 17 …. 11.63, 13.93, 26.31
s 17(2) …. 13.87
s 19 …. 13.67
s 20 …. 13.67
s 21 …. 13.87, 13.94
s 22 …. 11.72, 13.82
s 22(1) …. 11.18
s 22(2) …. 13.85
s 22(5) …. 13.86
s 23 …. 13.9
s 25 …. 15.82
s 26 …. 15.81, 16.45
s 27(1) …. 15.110
s 28 …. 15.111
s 28A …. 15.142
s 28B …. 15.98
s 28B(3) …. 15.103
s 28D …. 16.31, 17.12
s 28E …. 17.16, 17.25, 17.26
s 33 …. 10.45
s 34 …. 10.59
s 35 …. 10.46
s 38 …. 10.131
s 38(b) …. 10.138
s 40 …. 18.33
s 42 …. 10.148
s 43A(1) …. 21.34
s 43A(2) …. 21.35
 s 43A(5) …. 21.40
s 43B(1)(a) …. 21.41
Criminal Code 1924 …. 3.67
s 27 …. 3.70
s 141 …. 25.1
s 192(1) …. 3.33
Defamation Act 1957 …. 22.5
s 9(2) …. 23.99
s 18 …. 23.11
Defamation Act 2005 …. 22.8
Pt 3 Div 1 …. 23.102
s 3(d) …. 23.102
s 4 …. 23.8
s 6 …. 22.9
s 6(2) …. 22.26
s 7 …. 22.18, 22.18
s 8 …. 22.48
s 9 …. 22.84
s 11 …. 22.21, 22.21
s 17 …. 23.103
s 20 …. 23.133
s 20A …. 22.94
s 21(1) …. 22.62
s 22(2) …. 22.62
s 22(3) …. 23.140
s 24(1) …. 23.2
s 24(2) …. 23.49
s 25 …. 23.7
s 26 …. 23.12
s 27(1) …. 23.17
s 27(2)(a) …. 23.21
s 27(2)(b) …. 23.29
s 28(1) …. 23.68
s 29 …. 23.65
s 30(1) …. 23.47
 s 31 …. 23.91
s 32 …. 22.93, 23.95
s 33 …. 23.97
s 34 …. 23.117
s 35 …. 23.119
s 35(2) …. 23.120
s 36 …. 15.24, 23.114
s 37 …. 15.23, 23.113
s 38 …. 23.137
s 42 …. 23.9
Dog Control Act 2000
s 19 …. 26.17
s 19(5)(a) …. 26.23
s 19(5)(b) …. 26.20
Education Act 1994
s 4(1) …. 9.69
s 82A …. 6.54
Fatal Accidents Act 1934 …. 16.45
s 3 …. 16.17
s 4 …. 16.3
s 5 …. 16.25
s 6 …. 16.25
s 8(1) …. 16.25
s 10(1) …. 16.42
Guardianship and Administration Act 1995 …. 6.18
s 40 …. 6.24
Housing Indemnity Act 1992
s 8 …. 10.119
Human Tissue Act 1985
s 21 …. 6.23
Justices Act 1959 …. 3.35
Pt XII …. 6.56
Law of Animals Act 1962
Pt II …. 6.47
s 19 …. 26.35
Legal Profession Act 2007 …. 9.118
Limitation Act 1974 …. 14.1
s 2 …. 14.31, 14.35
s 2(2)(b) …. 14.40
s 4(1)(a) …. 3.88, 4.71, 5.102, 14.10, 19.62, 25.76
s 5 …. 3.88, 14.43
s 5(1) …. 14.8, 16.48, 25.76
s 5(2) …. 16.48
s 5(3) …. 14.61
s 5A(3) …. 14.19
s 5A(3)(b) …. 14.20
s 5A(5) …. 14.61
s 6(1) …. 5.104, 14.12
s 6(2) …. 5.104, 14.12
s 26 …. 14.30, 14.31
s 26(1) …. 14.35
s 26(7) …. 14.45
s 28 …. 14.31
s 32 …. 19.91
s 32(1) …. 14.47
s 38 …. 14.5
Magistrates Court Act 1991
s 44 …. 6.56
Motor Accidents (Liabilities and
Compensation) Act 1973 …. 1.47, 9.66, 20.60
s 22(3) …. 13.29
s 22(4) …. 13.29
Police Offences Act 1935
s 55 …. 3.66
Police Service Act 2003
s 84 …. 20.20
Relationships Act 2003
ss 4-6 …. 16.17
Sale of Goods Act 1896
s 30(2) …. 5.53
Sentencing Act 1997 …. 3.34
Supreme Court Civil Procedure Act 1932
s 35 …. 15.144
Testators Family Maintenance Act 1912 …. 10.105
Tortfeasors and Contributory Negligence Act 1954
s 3(1) …. 21.12
s 3(2) …. 21.22
Victims of Crime Assistance Act 1976 …. 1.48
Work Health and Safety Act 2012 …. 9.49, 9.52
ss 19–26 …. 9.50
ss 31–33 …. 9.52
s 267 …. 9.52
Workers Rehabilitation and Compensation Act 1988 …. 9.54
s 133 …. 15.137
Wrongs Act 1954
s 2 …. 13.6
s 3(1)(a) …. 21.6
s 3(1)(b) …. 21.12
s 3(1)(c) …. 21.16
s 3(5) …. 14.66
s 4(1) …. 13.6, 13.26, 25.59
s 4(4) …. 16.44

VICTORIA
Accident Compensation Act 1985 …. 9.54
s 134A(7)(c) …. 15.22
s 134AB(22)(c) …. 15.22
s 135A(10)(b) …. 15.97
Administration and Probate Act 1958
s 29 …. 16.51
s 29(2) …. 22.81
s 29(2)(a) …. 16.56
s 29(2)(c)(i) …. 16.57
s 29(2)(c)(ii) …. 16.54
s 29(2)(c)(iii) …. 16.54
 s 29(2A) …. 16.55
Age of Majority Act 1977 …. 1.21
s 3 …. 6.19
Australian Consumer Law and Fair Trading Act 2012
Ch 2 …. 19.93
s 12 …. 19.96
s 196 …. 19.97
Building Act 1993 …. 21.30
s 134 …. 14.11
Constitution Act 1975
s 19(1) …. 23.23
Crimes Act 1958
s 21A(1) …. 3.33
s 458 …. 3.66, 3.70
s 459A …. 4.37
s 463B …. 10.144
Crimes (Family Violence) Act 1987 …. 3.35
Defamation Act 2005 …. 22.8
Pt 3 Div 1 …. 23.102
s 3(d) …. 23.102
s 4 …. 23.8
s 6 …. 22.9
s 6(2) …. 22.26
s 7 …. 22.18
s 8 …. 22.48
s 9 …. 22.84
s 10 …. 22.81
s 11 …. 22.21
s 17 …. 23.103
s 20 …. 23.133
s 21(1) …. 22.62
s 22(2) …. 22.62
s 22(3) …. 23.140
s 24(1) …. 23.2
s 24(2) …. 23.49
 s 25 …. 23.7
s 26 …. 23.12
s 27(1) …. 23.17
s 27(2)(a) …. 23.21
s 27(2)(b) …. 23.29
s 28(1) …. 23.68
s 28(4)(d) …. 23.69
s 29 …. 23.65
s 30(1) …. 23.47
s 31 …. 23.91
s 32 …. 22.93, 23.95
s 33 …. 23.97
s 34 …. 23.117
s 35 …. 23.119
s 35(2) …. 23.120
s 36 …. 15.24, 23.114
s 37 …. 15.23, 23.113
s 38 …. 23.137
s 42 …. 23.9
Domestic Animals Act 1994
s 29(2) …. 26.20, 26.23
s 29(3) …. 26.17
Domestic Building Contracts Act 1995
Pt 2 Div 1 …. 10.119
Education and Training Reform Act 2006
s 1.1.3 …. 9.69
Education and Training Reform Regulations
reg 14 …. 6.54
Factories and Shops Act 1928
s 59(1)(a) …. 18.25
Goods Act 1958
s 31 …. 5.53
Guardianship and Administration Act 1986 …. 6.18, 14.39
s 42A …. 6.24
Human Tissue Act 1982
 s 24 …. 6.23
Impounding of Livestock Act 1994
ss 9–11 …. 6.47
Judicial Proceedings Reports Act 1959
s 4 …. 7.27
Legal Profession Act 1958
s 10(2) …. 9.112
Legal Profession Uniform Law Application Act 2014 …. 9.118
Limitation of Actions Act 1958 …. 14.1
Pt IIA, Div 5 …. 14.45
s 3 …. 14.31
s 3(2) …. 14.39
s 3(3) …. 14.39
s 5(1)(a) …. 3.88, 4.71, 5.102, 14.10, 19.62, 25.76
s 5(1AAA) …. 22.94
s 5(1AA) …. 14.8, 25.76
s 5(1A) …. 14.43
s 6(1) …. 5.104, 14.12
s 6(2) …. 5.104, 14.12
s 23 …. 14.30
s 23(2) …. 14.31
s 23A …. 14.61
s 23B …. 22.94
s 27 …. 14.47, 19.91
s 27B(1)(b) …. 14.20
s 27B(2)(d) …. 14.5
s 27D …. 3.88, 14.19, 14.20
s 27E …. 14.33
s 27F …. 14.19
s 27J …. 14.33
s 27K …. 14.61
s 33 …. 14.5
Limitation of Actions Amendment (Child Abuse) Act 2015 …. 14.45
Magistrates’ Court Act 1989
s 14 …. 6.56
Medical Treatment Act 1988
s 5(1)(c) …. 9.97
s 5A …. 6.26
s 5B(2) …. 6.26
s 6 …. 6.26
Mental Health Act 1986
s 10 …. 10.129, 10.141, 10.144
s 10(1) …. 10.129
Occupational Health and Safety Act 2004 …. 9.49
Property Law Act 1958
s 149(1) …. 4.8
s 195 …. 25.21
Road Management Act 2004
s 102 …. 10.148
Sentencing Act 1991 …. 3.34
Supervision of Workrooms and Factories Act 1873 …. 9.28
Supreme Court Act 1986
s 60 …. 15.144
Supreme Court Rules
O 40 r 10 …. 23.136
Transport Accident Act 1986 …. 1.47, 9.66
Pt 3, Div 2 …. 20.60
s 40 …. 13.44
s 93 …. 17.12, 17.23
s 93A …. 17.2
s 93(7)(c) …. 15.22
s 93(9) …. 16.46
s 93(10)(c) …. 15.97
Victims of Crime Assistance Act 1996 …. 1.48
Victoria Police Act 2013
s 74 …. 20.20
Workers’ Compensation Act 1958
s 65(1) …. 15.137
Workplace Injury Rehabilitation and Compensation Act 2013 …. 9.54
Wrongs Act 1958 …. 1.51, 15.108, 21.37
Pt III …. 16.46
Pt IVAA …. 21.32
Pt VC …. 15.37
Pt VIA …. 11.29
Pt VIB …. 13.103
Pt IX …. 13.102
s 5K …. 13.9
s 14 …. 17.25
s 14B …. 9.17
s 14G …. 13.37
s 14G(1) …. 13.37
s 14G(2)(b) …. 13.77
s 16 …. 16.3
s 17(1) …. 16.25
s 17(2) …. 16.16
s 18 …. 16.25
s 19(1) …. 16.42
s 19(2)–(5) …. 16.38
s 19A …. 16.29
s 20(1) …. 16.25, 16.48
s 23B(1) …. 21.16, 21.21
s 24(2) …. 21.22
s 24(4) …. 14.66
s 24AA …. 21.6
s 24AB …. 21.12
s 24AF(1) …. 21.34
s 24AH(1) …. 21.35
s 24AI(1)(a) …. 21.41
s 24AM …. 21.40
s 25 …. 6.60, 13.6
s 26(1) …. 13.6, 25.59
s 26(4) …. 16.44
s 28A …. 15.85
s 28B …. 15.108
s 28C(2)(a) …. 3.78
s 28D …. 1.30
s 28F …. 15.81, 16.45
s 28G …. 15.109
s 28HA …. 15.111
s 28I …. 15.142
s 28IA …. 15.98
s 28IB …. 15.103
s 28ID …. 15.105
s 28N …. 15.37
s 31B …. 13.100
s 33 …. 26.35
s 43 …. 12.6
s 45 …. 12.3
s 48 …. 11.34
s 48(2) …. 11.49
s 48(3) …. 11.45
s 49(a) …. 11.64
s 49(b) …. 11.65
s 49(c) …. 11.66
s 51 …. 12.33
s 51(1)(b) …. 12.57
s 51(2) …. 12.39
s 51(3) …. 12.55
s 51(4) …. 12.57
s 52 …. 12.54
s 53 …. 13.53, 26.33
s 54 …. 13.53, 26.33
s 55 …. 13.100
s 57 …. 13.84
s 58 …. 11.20
s 59 …. 11.72, 13.82
s 59(1) …. 11.18
s 59(2) …. 13.85
s 60 …. 13.86
s 61 …. 20.84
 s 63 …. 13.26
s 73 …. 10.69
s 74 …. 10.69
s 75 …. 10.45, 10.46
s 78 …. 10.59
s 83 …. 10.131
s 84 …. 18.33

WESTERN AUSTRALIA
Age of Majority Act 1972 …. 1.21
Civil Liability Act 2002 …. 1.51
Pt 1B …. 10.69
Pt 1D …. 11.29, 13.100
Pt 1F …. 21.32
Pt 2 Div 4 …. 15.37
s 3 …. 12.6
s 3A …. 7.8, 12.3
s 3B(1) …. 3.78
s 5 …. 6.19
s 5AAC …. 11.29
s 5AAC(2) …. 11.29
s 5AAD …. 11.29
s 5AI …. 21.35
s 5AI(1) …. 21.34
s 5AJA …. 21.40
s 5AK(1)(a) …. 21.41
s 5B …. 11.34
s 5B(2) …. 11.49
s 5C …. 12.33
s 5C(1)(b) …. 12.57
s 5C(2) …. 12.39
s 5C(3) …. 12.55
s 5C(4) …. 12.57
s 5D …. 12.54
s 5E …. 13.67
 s 5F …. 13.53, 26.33
s 5H …. 13.67
s 5K …. 13.9
s 5L …. 13.34
s 5L(4) …. 13.33
s 5M …. 11.63
s 5N …. 13.53, 26.33
s 5O …. 11.63, 13.93, 26.31
s 5O(2) …. 13.87
s 5P …. 13.100
s 5PA …. 13.90
s 5PB …. 11.72, 13.89
s 5PB(1) …. 13.96
s 5PB(2) …. 13.96
s 5S …. 10.59
s 5S(1) …. 10.45
s 5T …. 10.46
s 5W …. 10.131
s 5W(b) …. 10.138
s 5X …. 18.33
s 6 …. 12.3
s 9(1) …. 15.110
s 9(4) …. 15.108
s 10 …. 15.109
s 10A …. 15.111
s 11 …. 15.81
s 11(1) …. 16.45
s 12 …. 15.98
s 12(5) …. 15.103
s 52 …. 10.148
s 54(2) …. 13.35
s 58 …. 1.30
Criminal Code …. 3.67
s 8(2) …. 13.75
s 246 …. 6.35, 6.36
 s 248 …. 6.32
s 250 …. 6.34
s 254 …. 6.37
s 273 …. 6.34
s 313 …. 6.36
s 338E(1) …. 3.33
s 371A …. 13.75
Criminal Injuries Compensation Act 2003 …. 1.48
Criminal Investigation Act 2006
s 25 …. 3.70
s 33 …. 4.37
s 128 …. 3.66
Defamation Act 2005 …. 22.8
Pt 3 Div 1 …. 23.102
s 3(d) …. 23.102
s 4 …. 23.8
s 6 …. 22.9
s 6(2) …. 22.26
s 7 …. 22.18
s 8 …. 22.48
s 9 …. 22.84
s 10 …. 22.81
s 11 …. 22.21
s 17 …. 23.103
s 20 …. 23.133
s 21(1) …. 22.62
s 22(2) …. 22.62
s 22(3) …. 23.140
s 24(1) …. 23.2
s 24(2) …. 23.49
s 25 …. 23.7
s 26 …. 23.12
s 27(1) …. 23.17
s 27(2)(a) …. 23.21
s 27(2)(b) …. 23.29
 s 28(1) …. 23.68
s 29 …. 23.65
s 30(1) …. 23.47
s 31 …. 23.91
s 32 …. 22.93, 23.95
s 32(3)(f)(ii) …. 22.93
s 33 …. 23.97
s 34 …. 23.117
s 35 …. 23.119
s 35(2) …. 23.120
s 36 …. 15.24, 23.114
s 37 …. 15.23, 23.113
s 38 …. 23.137
s 42 …. 23.9
Dog Act 1976
s 3(1) …. 26.20, 26.23
s 33D …. 26.20, 26.23
s 46 …. 26.17
s 46(2) …. 26.21
s 46(3) …. 26.17
Equal Opportunity Act 1984 …. 22.40
Evidence Act 1906
s 49 …. 17.25
Fair Trading Act 2010
Pt 3 …. 19.93
s 11 …. 19.96
s 110 …. 19.97
Fatal Accidents Act 1959 …. 16.45
s 3 …. 16.16
s 3(1) …. 16.18
s 4 …. 16.3
s 5(2) …. 16.42
s 6(1) …. 16.17
s 6(1B) …. 16.25
s 7 …. 16.25
 s 9(1) …. 16.25
Sch 2 …. 16.16
Sch 2 cl 1 …. 16.19
Sch 2 cl 1(d) …. 16.18
Sch 2 cl 1(e) …. 16.18
Sch 2 cl 1(h) …. 16.17
Guardianship and Administration Act 1990 …. 6.18
Pt 9B …. 6.26
s 110P …. 6.26
s 110ZH …. 6.24
Highways (Liability for Straying Animals) Act 1983
s 3(1) …. 26.35
s 3(3) …. 26.2, 26.24
s 3(4) …. 26.32
Human Tissue and Transplant Act 1982
s 21 …. 6.23
Interpretation Act 1984
s 13A(3) …. 16.17
Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947
s 3A …. 13.6
s 4(1) …. 13.6, 13.21, 13.41, 25.59
s 4(2)(a) …. 16.44
s 4(2)(d) …. 16.54
s 4(2)(e) …. 16.54
s 7 …. 21.6
s 7(1)(b) …. 21.12
s 7(1)(c) …. 21.16
s 7(2) …. 21.22
Law Reform (Miscellaneous Provisions) Act
s 3 …. 17.12
s 4 …. 16.51
s 4(2) …. 22.81
s 4(2)(a) …. 16.56
s 4(2)(c) …. 16.57
s 4(2a) …. 16.55
 s 5 …. 15.142
Legal Profession Act 2008 …. 9.118
Limitation Act 1935 …. 14.4
s 13(1) …. 19.62
s 27 …. 14.49
s 37 …. 19.91
s 49 …. 14.5
Limitation Act 2005 …. 14.1, 14.4, 14.50
s 3(1) …. 14.40
s 6 …. 14.19
s 9 …. 5.102, 14.5
s 12 …. 4.71
s 13(1) …. 3.88, 14.10, 25.76
s 13(2) …. 16.48
s 14(1) …. 3.88, 14.8
s 15 …. 22.94
s 17 …. 14.67
ss 29–32 …. 14.31
s 30 …. 14.34
s 31 …. 14.34
s 32 …. 14.34
s 33 …. 14.45
ss 35–36 …. 14.31
s 38 …. 14.50
s 39(3) …. 14.62
s 39(4) …. 14.62
s 40 …. 22.94
s 59 …. 5.104
s 55 …. 14.19
s 60 …. 14.12
Local Government (Miscellaneous Provisions) Act 1960
s 401 …. 10.130
Magistrates Court Act 2004
s 37 …. 6.56
Motor Vehicle (Third Party Insurance) Act
1943 …. 9.65, 20.60
Occupational Safety and Health Act 1984 …. 9.49
Occupiers Liability Act 1985
s 5 …. 9.17
Parliamentary Privileges Act 1891
s 1 …. 23.23
Police Act 1892
s 137 …. 20.20
Property Law Act 1969 …. 4.70
s 74(1) …. 4.8
s 121 …. 25.21
Restraining Orders Act 1997 …. 3.35
Sale of Goods Act 1895
s 25(2) …. 5.53
School Education Act 1999
s 6 …. 9.69
School Education Regulations 2000
reg 40(2) …. 6.54
Sentencing Act 1995 …. 3.34
Strata Titles Act 1985
s 35(1)(c) …. 18.28
Supreme Court Act 1935
s 32 …. 15.144
s 32(2) …. 15.148
Supreme Court Rules
O 34 r 6 …. 23.136
Volunteers and Food and Other Donors (Protection from Liability) Act 2002
Pt 2 …. 13.102
Pt 3 …. 13.103
Workers’ Compensation and Injury Management Act 1981 …. 9.54
s 92 …. 15.137

UNITED KINGDOM
Animals Act 1971 …. 26.36
s 8 …. 26.35
Common Law Procedure Act 1852 …. 2.10
Contagious Diseases (Animals) Act 1869
s 75 …. 18.24
Dog Nuisance Act 1830 …. 26.16
Factories Act 1937
s 22(1) …. 18.29
Factories Amendment Act 1844 …. 9.28, 9.48
Factory Regulation Act 1833 …. 9.48
Fatal Accidents Act 1848 …. 16.3
Health and Morals of Apprentices Act 1802 …. 9.48
Human Rights Act 1998 …. 7.31
Limitation Act 1939 …. 14.17
s 26 …. 14.17
Lord Campbell’s Act see Fatal Accidents Act 1848 …. 16.29
National Insurance (Industrial Injuries) Act 1946 …. 9.53
Prescription Act 1832
s 3 …. 25.21
Protection from Harassment Act 1997 …. 18.23
Torts (Interference with Goods) Act 1977 …. 5.56
Waterworks Clauses Act 1847
s 35 …. 18.26
Workmen’s Compensation Act 1897 …. 1.46, 9.28, 9.53
 Contents

Detailed Contents
Preface
Table of Cases
Table of Statutes

Chapter 1 An Introduction to Torts

Chapter 2 The Distinction Between Trespass and Case

Chapter 3 Trespass to Person

Chapter 4 Trespass to Land

Chapter 5 Trespass to Personal Property

Chapter 6 Defences to Trespass

Chapter 7 Intentional Damage to a Person

Chapter 8 The Negligence Action

Chapter 9 Established Duties of Care

Chapter 10 Novel Duties of Care

Chapter 11 Standard of Care and Breach

Chapter 12 Damage — Causation and Scope

Chapter 13 Defences to Negligence

Chapter 14 Limitation of Actions

Chapter 15 Judicial Remedies

Chapter 16 Wrongful Death

Chapter 17 Service and Family Relations

Chapter 18 Public and Statutory Duties

Chapter 19 Misrepresentation in Torts — Negligence and Deceit

Chapter 20 Vicarious Liability and Non-Delegable Duties

Chapter 21 Multiple Tortfeasors

Chapter 22 Defamation

Chapter 23 Defences and Remedies in Defamation

Chapter 24 Interference with Business Interests

Chapter 25 Nuisance

Chapter 26 Liability for Animals

Index
 Detailed Contents

Contents
Preface
Table of Cases
Table of Statutes

Chapter 1 An Introduction to Torts

1 Introduction
2 What is a Tort?
Act or Omission
Infringement of Rights
Action for Damages
3 Parties — Capacity to Sue and be Sued
Minors
Intellectually Disabled Persons
4 Comparison with Other Areas of the Law
Contract and Torts
Crimes and Torts
5 The Evolution of Torts Law
The Impact of Statute
The Impact of Insurance
The High Court
Further Reading
Chapter 2 The Distinction Between Trespass and Case
1 Introduction
2 Trespass
Direct Interference
Fault of the Defendant
Actionable Per Se
Onus of Proof
3 Action on the Case
4 Criticisms of the Australian Position
5 Innominate Actions on the Case
Further Reading

Chapter 3 Trespass to Person

1 Introduction
2 Battery
Direct Application of Force
Offensive Contact
Lack of Consent
Knowledge of the Contact
Fault
3 Assault
Threat
Ability to Carry Out the Threat
Fault
Stalking and Domestic Violence
4 Queensland Position on Common Law Assault and Battery
Definition of Assault
 Differences Between the Common Law and s 245
5 False Imprisonment
Direct Interference
Restraint in All Directions
Fault
Lawful Justification
6 Remedies
Nominal Damages
Compensatory Damages
Aggravated and Exemplary Damages
Injunction and Other Orders
7 Limitation Period
Further Reading

Chapter 4 Trespass to Land

1 Introduction
2 Title to Sue
Tenants and Lessors
Licensees
Co-owners
Easements and Profits à Prendre
Purchasers Under a Contract of Sale
3 Actionable Interference
Direct Interference
Interference with Land
Unauthorised Interference
4 Fault
 5 Examples of Actionable Interferences
Placing or Leaving Objects on Land
Animals
Transient Interferences with Airspace
Continuing Trespass
6 Remedies
Self-help
Damages
Injunction
Mesne Profits
Statutory Relief
7 Limitation Period
Further Reading

Chapter 5 Trespass to Personal Property

1 Introduction
2 Trespass to Chattels
Title to Sue
Direct Interference
Fault
Actionable Without Proof of Damage
3 Conversion
Title to Sue
Repugnant Dealing
Fault
4 Detinue
Title to Sue
 Detention of Goods
Fault
5 Innominate Tort by Reversionary Owners
6 Remedies
Self-help
Damages
Injunction
7 Limitation Period
Further Reading

Chapter 6 Defences to Trespass

1 Introduction
2 Inevitable Accident
3 Consent
Scope of the Consent
Voluntary
Capacity to Consent
Consent to Medical Treatment
Revocation or Withdrawal of Consent
4 Self-Defence
5 Defence of Another
6 Provocation (Queensland)
7 Defence of Property
8 Self-Help
9 Necessity
Imminent Threat
Reasonable Necessity
Imminent Threat Not Due to Defendant’s Negligence
 Medical Necessity
10 Defences Specific to Trespass to Personal Property
Jus Tertii
Loss of Possession
Distress Damage Feasant
11 Statutory Authority
12 Disciplinary Powers
13 Judicial Acts
14 Execution of Process
15 Crown Authority
16 Contributory Negligence
17 Mistake, Insanity and Involuntarism
Mistake
Insanity and Involuntarism
18 Ex Turpi Causa Oritur Non Actio
Further Reading

Chapter 7 Intentional Damage to a Person

1 Introduction
2 Intentional Infliction of Psychiatric Injury
3 Malicious Prosecution
Proceedings Initiated Against the Plaintiff by the Defendant
Proceedings Terminated in Favour of Plaintiff
Malice
Absence of Reasonable and Probable Cause
Damage
Remedy
4 Privacy
 Development of a Tort of Privacy under the Common Law
Law Reform
Other Jurisdictions
Further Reading

Chapter 8 The Negligence Action

1 Introduction
2 The Structure of a Negligence Action
Reasonable Foreseeability
3 Overview of the Elements of the Negligence Action
Duty of Care
Breach of Duty
Damage
4 Questions of Law and Fact
Further Reading

Chapter 9 Established Duties of Care

1 Introduction
Scope of the Duty of Care
Established Duties of Care
2 Occupiers of Premises
Scope of the Duty
3 Employers
Scope of the Duty
Legislation
4 Road Users
Scope of the Duty
Legislation
 5 Persons in Control of Others
School Authorities and Students
School Authorities and Third Parties
Parent and Child
Parent and Third Party
Prison Authorities and Prisoners
Prison Authorities and Third Parties
6 Professionals
Medical Professionals
Legal Professionals
7 Manufacturers of Goods
Scope of the Duty
Legislation
Further Reading

Chapter 10 Novel Duties of Care

1 Introduction
2 Historical Summary
Reasonable Foreseeability
The Anns Approach
The Proximity Approach
The Caparo Approach
The Incremental Approach
The Salient Features Approach
3 The Current Approach of the High Court
Sullivan v Moody
Reasonable Foreseeability
 Legal Principle v Legal Policy
Legal Policy v Public Policy
4 Scope of the Duty
5 Pure Psychiatric Injury
Recognised Psychiatric Injury
Reasonable Foreseeability
Relevant Factors
Pure Psychiatric Injury in an Established Duty
6 Pure Economic Loss
Relational Loss
Negligent Provision of Services
Defective Buildings
7 Liability of Public Authorities
Statutory Power
Relevant Factors
Road Authorities
Further Reading

Chapter 11 Standard of Care and Breach

1 Introduction
2 Standard of Care
Objective Test
3 Breach of Standard
Foreseeable and Not Insignificant Risk
Reasonable Response to the Risk
Balancing the Factors
4 Procedure and Proof
 Functions of Judge and Jury
Appeals
Onus and Standard of Proof
Res Ipsa Loquitur (The Thing Itself Speaks)
Further Reading

Chapter 12 Damage — Causation and Scope

1 Introduction
2 Recognised Kind of Damage
Damage Not Recognised at Law
3 Factual Causation
Common Law Tests
Civil Liability Legislation
Multiple Tortfeasors
Onus of Proof
4 Scope of Liability
Remoteness of Damage
Intervening Acts
Legally Significant Cause
Further Reading

Chapter 13 Defences to Negligence

1 Introduction
2 Contributory Negligence
The Common Law Position
Modern Contributory Negligence
Establishing Contributory Negligence
Apportionment
 Legislative Presumptions of Contributory Negligence
Appeals
3 Volenti Non Fit Injuria (No Injury is Done to One Who Voluntarily
Consents)
Full Knowledge of Risk
Voluntary Acceptance of Risk
4 Illegality
Joint Illegal Enterprise
Plaintiff’s Illegal Activity
5 Immunity from Civil Liability
Provision of a Professional Service
Obvious Risks
Inherent Risks
Rescue Cases
Volunteers
6 Exclusion of Liability Clauses
Further Reading

Chapter 14 Limitation of Actions

1 Introduction
2 The Limitation Period
Personal Injury
Property Damage and Economic Loss
3 Accrual: Commencement of the Period
Personal Injury
Property Damage
Economic Loss
4 Suspension and Extension of the Limitation Period
 Suspension of Time
Extension of Time
5 Contribution Between Tortfeasors
Further Reading

Chapter 15 Judicial Remedies

1 Introduction
2 The Equitable Remedies
Declaration
Account
Injunction
3 Damages at Common Law
The Categories of Damages
4 Principles of Assessment of Compensatory Damages
Egg-shell Skull Rule
The Indemnity Principle
Once and for All Rule
Lump Sum Rule
Duty to Mitigate
5 Property Damage
Cost of Repair and Diminished Value
Replacement Costs
Consequential Losses
6 Damages for Personal Injuries
Compensatory Damages
Hospital and Medical Expenses
Loss of Earning Capacity
 Gratuitous Services
Gratuitous Domestic Services
Non-Pecuniary General Damages
Other Expenses
Achieving the Indemnity Principle
The Award
Further Reading

Chapter 16 Wrongful Death

1 Introduction
2 Compensation to Relatives
Right of Action
Causation
Dependants
Executor Brings the Action
Damages that May be Claimed for Wrongful Death
Assessment of Damages for Wrongful Death
Interest
Limitation Period
3 Survival of Causes of Action
Damages
Limitation Period
Further Reading

Chapter 17 Service and Family Relations

1 Introduction
2 Loss of an Employee’s Services
Damages
 3 Interference with Domestic Relations Between Husband and Wife
Loss of Consortium and Servitium
Seduction, Enticement and Harbouring
Damages
4 Interference with Domestic Relations Between Parent and Child
Loss of Services
Seduction, Enticement and Harbouring
Further Reading

Chapter 18 Public and Statutory Duties

1 Introduction
2 Breach of Statutory Duty
A Private Cause of Action
The Duty was Imposed on the Defendant
The Statute was Intended to Prevent that Kind of Harm
The Plaintiff was a Person for Whose Protection the Statute was
Passed
Breach of the Duty
Causation
Defences
3 Abuse of Process
Improper Motive
Damage
Defences
4 Misfeasance in Public Office
Invalid or Unauthorised Act Committed with Malice
Public Officer in Purported Discharge of Duty
 Damage
Further Reading

Chapter 19 Misrepresentation in Torts — Negligence and Deceit

1 Introduction
2 Actionable Misrepresentations
3 Negligent Misrepresentation
Historical Background
Duty of Care
Scope of the Duty of Care
Breach and Damage
Contributory Negligence
Remedies
Limitation Period
4 Deceit (Fraudulent Misrepresentation)
Misrepresentation of Fact
Scienter (Knowledge of Falsity)
Intended Reliance
Reliance
Damage
Remedies
Limitation Period
5 Statutory Actions for Misrepresentation
Person or Corporation
Trade or Commerce
Misleading or Deceptive Conduct
Disclaimers
 Remedies
Limitation Period
Further Reading

Chapter 20 Vicarious Liability and Non-Delegable Duties

1 Introduction
2 Vicarious Liability
Employer and Employee
Course of Employment
Principal and Agent
3 Non-Delegable Duties
Employers
Schools
Hospitals
Occupiers of Premises
Characteristics of a Non-Delegable Duty
Scope and Breach of Duty
Legislation
4 Indemnities
Further Reading

Chapter 21 Multiple Tortfeasors

1 Introduction
2 Joint Tortfeasors
The Legislation
3 Several Tortfeasors
4 Concurrent Tortfeasors
Contribution by Concurrent Tortfeasors
 Assessment of Contribution
Indemnity and the Rule in Lister v Romford Ice
5 Proportionate Liability
Apportionable Claim
Concurrent Wrongdoer
Exclusions
Apportioning Liability
Further Reading

Chapter 22 Defamation
1 Introduction
2 History of Defamation Law in Australia
National Defamation Law
3 Description of Defamation
Common Law
Defamation Acts
4 Jurisdiction
5 Elements of Defamation
Defamatory Matter
Defamatory on the Facts
Reference to the Plaintiff
Publication
Parties to the Action
Limitation Period
6 Australian Consumer Law
Defamation
Further Reading
Chapter 23 Defences and Remedies in Defamation
1 Introduction
2 Defences
Justification (Truth)
Contextual Truth
Absolute Privilege
Qualified Privilege
Protected Reports
Implied Constitutional Protection
Fair Comment/Honest Opinion
Innocent Dissemination
Triviality
Consent
Acceptance of Offer to Make Amends
3 Remedies
Injunction
Damages
Further Reading

Chapter 24 Interference with Business Interests

1 Introduction
2 Passing Off
Reputation
False Representation Calculated to Deceive Representation
Damage
Examples of Passing Off
Defences
 Remedies
Legislation
3 Interference with Contractual Relations
Contract
Knowledge of the Contract
Intention
Interference
Breach of Contract
Damage
Defences
Remedies
4 Conspiracy
Agreement
Intention
Damage
Defences
Remedies
5 Intimidation
Threat of an Unlawful Act
Compliance
Intention
Damage
Defences
Remedies
6 Injurious Falsehood
False Statement
 Publication
Malice
Damage
Remedies
Australian Consumer Law
Comparison with Defamation
Further Reading

Chapter 25 Nuisance
1 Introduction
2 Private Nuisance
Title to Sue
Who Can be Sued
Rights Capable of Protection
Interference with the Protected Right
Interference with Enjoyment
Damage
Onus of Proof
Defences
Remedies
Limitation Period
3 Public Nuisance
Title to Sue
Who Can be Sued?
Interference with a Public Right
Substantial and Unreasonable Interference
Onus of Proof
 Defences
Remedies
4 A Comparison of Nuisance and Negligence
Historical Development
The Interests Protected and the Right to Sue
The Class of Wrongdoers
Basis of Liability
Onus of Proof
Damage
Defences
Remedies
Further Reading

Chapter 26 Liability for Animals

1 Introduction
2 Strict Liability
Scienter
Strict Liability for Dogs
Cattle Trespass
3 Fault
Trespass
Negligence
Rule in Searle v Wallbank
Nuisance
Further Reading

Index
[page 1]
 Chapter 1

An Introduction to Torts

1 Introduction
1.1 The slow evolution of Australian torts law from its beginnings in 12th
and 13th century feudal England, and its changing concerns in terms of its
aims, has resulted in there being no generally accepted definition of a ‘tort’.
The most that can be said is that the law of torts is a collection of civil wrongs
(torts) for which the common law will provide a remedy, usually in the form
of an award of monetary compensation (damages). The word ‘tort’, meaning
‘wrong’, comes from the Latin word tortus, meaning crooked or twisted.

1.2 The wrongs which are the subject of individual tort actions are the acts
or omissions which infringe one or more of a range of rights recognised by
the common law including:
rights of personal safety and integrity (for example, the torts of assault,
battery, false imprisonment and negligence);
rights associated with the possession and ownership of land (for
example, the torts of trespass to land, nuisance and negligence) and of
personal property (for example, the torts of trespass to chattels,
conversion and negligence);
rights associated with economic and commercial interests (for
example, the torts of passing off, conspiracy, deceit and negligence);
and
personal reputation (for example, the tort of defamation).
 2 What is a Tort?
1.3 Each tort action has its own legal requirements or elements with
consequent differences in defences and remedies, and many of these tort
actions will be discussed in the coming chapters. Generally, however, all torts
have the following key features in common, constituting:1
an act or omission;
the infringement of a legally recognised right; and
an action for damages.

[page 2]

Act or Omission
1.4 At common law, there is an important distinction between acts causing
harm (misfeasance) and omissions or failures to act resulting in harm
(nonfeasance). Traditionally, the common law provides that a person is under
no legal obligation to provide assistance to a person endangered from a
source unconnected with that person. Therefore, under existing law, a good
swimmer may be under no duty to help someone in danger of drowning:
Quinn v Hill [1957] VR 439. Neither is a doctor under a legal duty to assist
strangers; but see Lowns v Woods (1996) Aust Torts Reports ¶81-376. See also
Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council
(2001) 206 CLR 512; 180 ALR 145 at [86]–[90] Gaudron, McHugh and
Gummow JJ.

1.5 In regard to misfeasance, or positive actions causing harm, the act must
have been voluntary in the sense that the tortfeasor (the wrongdoer who
committed the tort) knowingly committed the act, but it is not usually
necessary that the tortfeasor knew that harm would result from the act:
Consolidated Company v Curtis & Son [1892] 1 QB 495. In this case, the
defendant auctioneers innocently sold and delivered goods to a third party.
They knowingly sold the goods, but did not intend to deprive the plaintiff
owner of title to the goods because they were unaware of his status as the true
owner and believed the person who delivered the goods for sale to be the
owner. They were, nevertheless, liable for the tort of conversion.

1.6 Another term that is used when considering acts or omissions is fault.
Fault may consist of intentionally or negligently doing the act that caused the
harm. Some torts, such as misfeasance in public office, require that the
defendant intended to harm the plaintiff: Northern Territory v Mengel (1995)
185 CLR 307. For other torts, it is sufficient that the defendant was negligent
in doing the act that caused the harm: L Shaddock & Associates Pty Ltd v
Parramatta City Council (1981) 150 CLR 225. Negligence has been defined in
the most general sense by B Alderson in Blyth v Birmingham Waterworks Co
(1856) 11 Ex 781 at 784 as:
… 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
reasonable and prudent man would not do.

1.7 Finally, and exceptionally, some torts impose liability in the absence of
both negligence and intention. These are torts imposing strict liability for the
harm caused: Rylands v Fletcher (1868) LR 3 HL 330. See also Transco plc v
Stockport Metropolitan Borough Council [2003] 3 WLR 1467.

1.8 Generally, motive (the tortfeasor’s reason for acting) is not relevant to
liability and will not normally convert a lawful act motivated by ill will into an
unlawful one. Exceptionally, motive may be a justification for an act that is
otherwise tortious, as where in an emergency it becomes necessary to commit
what would otherwise be a trespass in order to preserve life or property:
Proudman v Allen [1954] SASR 336. Motive may be relevant to the type and
assessment of damages: Bradford Corporation v Pickles [1895] AC 587; Mogul
Steamship Co Ltd v McGregor, Gow & Co [1892] AC 25.
 [page 3]

1.9 Malice, meaning ‘dishonest or improper motive’, is also generally

irrelevant to liability except in those few torts where malice is one of the
elements of the cause of action, as it is in the torts of malicious prosecution (A
v New South Wales (2007) 230 CLR 500; 233 ALR 584; Commonwealth Life
Assurance Society Ltd v Brain (1935) 53 CLR 343) and conspiracy:
Commissioner for Railways (NSW) v Scott (1959) 102 CLR 392. Malice in a
defendant may also negative some defences, for example in defamation, and
may be relevant to the type and assessment of damages.

Infringement of Rights
1.10 Since not all forms of harm are compensable in the law of torts,2 the
second key feature of a torts action is that the defendant’s act or omission has
infringed a legally recognised right of the plaintiff. This will be particularly
important where the action involves pure financial loss rather than, for
example, an interference with more traditional rights, such as those
associated with land and personal safety. As Gummow J commented in the
pure economic loss case of Perre v Apand Pty Ltd (1999) 198 CLR 180; 164
ALR 606 at [192], the first issue is to identify the interests or rights which the
plaintiff claims have been infringed. Unless the plaintiff can establish that
there has been an interference or infringement with a legally recognised right,
the plaintiff will have no cause of action in torts law: see, for example, Sullivan
v Moody (2001) 207 CLR 562; 183 ALR 404; Harriton v Stephens (2006) 226
CLR 52; 226 ALR 391.

1.11 In Victoria Park Racing & Recreation Grounds Co Ltd v Taylor (1937)
58 CLR 479, for example, the Australian High Court held that the owners of a
racecourse had no cause of action against the defendant who broadcast
commentaries from a platform on adjoining land, because there is no legal
right not to be overlooked. Similarly, there is no legal right to uninterrupted
television reception: Hunter v Canary Wharf Ltd [1996] 2 WLR 348; [1996] 1
All ER 482. In Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391, by a 6:1
majority decision, the High Court denied that a person has (or had) a right to
have their mother’s pregnancy terminated because of the likelihood of their
being born catastrophically disabled. See also Waller v James; Waller v
Hoolahan (2006) 226 CLR 136; 226 ALR 457.

1.12 However, the common law is constantly evolving and it is possible for
new rights to be recognised by the courts. For example, while previously the
law recognised no right of privacy (Victoria Park Racing & Recreation
Grounds Co Ltd v Taylor (1937) 58 CLR 479), more recently the High Court
has acknowledged that there is growing support for the recognition of a right
of privacy: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd
(2001) 208 CLR 199; 185 ALR 1.3 Other possible rights which might, in the
future, be recognised by the common law as being appropriate for protection
by torts law are those relating to the right to be free from sexual harassment:
see, for example, Khorasandjian v Bush [1993] QB 727; Deasy Investments Pty
Ltd v Monrest Pty Ltd [1996] QCA 996;

[page 4]

Hunter v Canary Wharf Ltd [1996] 2 WLR 348; [1996] 1 All ER 482. Torts
actions relating to protection from workplace harassment and sexual,
religious, racial or other forms of discrimination have also been suggested as
possibilities for the future.4

1.13 Rights recognised by the common law can be divided into two types:
absolute rights — any interference with which gives rise to an action in
tort, that is, the right is actionable per se (plaintiff need not suffer
damage from the interference); and
 qualified rights — interference with which only gives rise to an action
in tort when that interference has caused a recognisable form of harm
to the plaintiff.

1.14 The trespass to land action, for example, protects the absolute rights
associated with the possession of land and any direct interference with those
rights will give rise to a trespass action: Plenty v Dillon (1991) 171 CLR 635. In
contrast, where there is an indirect interference with a person’s possession of
land, then the protection given by the nuisance and negligence actions, for
example, is qualified by the need for the plaintiff to suffer a legally recognised
form of damage — ‘the gist of the action’ — as a result of the indirect
interference: Esso Petroleum Co Ltd v Southport Corporation [1954] 2 QB 182.

1.15 The significance of the need to prove a legally recognised form of

harm in actions involving infringement of a qualified right, such as in a
negligence action, has been reaffirmed by the decision of the Australian High
Court in CSR Ltd v Della Maddalena (2006) 224 ALR 1; 80 ALJR 458. In that
case, the court indicated that the common law recognises no right to be
compensated for suffering from the fear of developing an occupational
disease such as mesothelioma, unless such fear amounts to a diagnosable
psychiatric illness. See also the English Court of Appeal decision in Rothwell v
Chemical & Insulating Co Ltd [2006] 4 All ER 1161.

Action for Damages

1.16 Damages are a monetary sum awarded to the plaintiff by a court to
compensate, so far as money is able, for the infringement of a legally
recognised right. The key importance of this feature of a torts action was
confirmed by Crennan J in Harriton v Stephens (2006) 226 CLR 52; 226 ALR
391 at [264], where her Honour said:
Providing compensation if liability is established is the main function of tort law; compensation
is “[t]he one principle that is absolutely firm, and which must control all else;” if the principle
cannot be applied the damage claimed cannot be actionable. [footnote omitted]
1.17 As will be discussed further in Chapter 15, there are different kinds of
damages:
nominal damages;
contemptuous damages;
compensatory damages;
aggravated damages; and
exemplary or punitive damages.

[page 5]

1.18 The right to damages for personal injury has been affected by
legislation, either by placing limitations on the damages that may be
recovered, or limiting the right to take a common law action when a no-fault
compensation scheme exists: see 1.45.

1.19 The fact that a tort will ground an action for damages at common law,
however, does not exclude other remedies in appropriate cases. For example,
the equitable remedies of injunction, declaration and account may also be
available in regard to certain torts. An injunction is available, for example, to
prevent interferences to the possession and enjoyment of land and also to
prevent the publication of defamatory material, where damages may not be
an adequate remedy: Bankstown City Council v Alamdo Holdings Pty Ltd
(2005) 223 CLR 660: see Chapter 15.

3 Parties — Capacity to Sue and be Sued

1.20 The basic rule is that any person who is of sound mind and at least 18
years old may sue and/or be sued in relation to tortious acts and omissions.
Special rules apply, or have in the past applied, to various special categories of
persons, including the Crown, the judiciary, married women, partnerships,
corporations, trade unions, assignees and bankrupts.5 In this section, minors
and intellectually disabled persons are considered.

Minors
1.21 Minors are persons under the age of 18 years: see Age of Majority Act
1974 (ACT); Minors (Property and Contracts) Act 1970 (NSW); Age of
Majority Act 1974 (NT); Age of Majority Act 1974 (Qld); Age of Majority
(Reduction) Act 1970 (SA); Age of Majority Act 1973 (Tas); Age of Majority
Act 1977 (Vic); Age of Majority Act 1972 (WA).

1.22 A minor may sue for harm caused to them by another person’s tort,
including for prenatal injuries: Watt v Rama [1972] VR 353; Lynch v Lynch
(1991) 25 NSWLR 411; X and Y (By Her Tutor X) v Pal (1991) 23 NSWLR 26;
Bowditch v McEwan (2002) 36 MVR 235. As a matter of procedure, a minor
sues in tort by a next friend and defends a tortious action through a guardian
ad litem.

1.23 Minors may be liable for their torts upon ordinary principles,
provided they have the capacity to form any necessary intention where that is
a required element of the tort, for example, in an action in deceit. In regard to
the position of minors who are sued in the tort of negligence, see 11.9–11.10.

1.24 There is no bar to tortious proceedings between parent and child;

instead, it will depend upon the circumstances of the case and the nature of
the tort: St Mark’s Orthodox Coptic College v Abraham [2007] NSWCA 185;
Lynch v Lynch (1991) 25 NSWLR 411; Hahn v Conley (1971) 126 CLR 276;
Chang v Chang [1973] 1 NSWLR 708: see 9.77.

1.25 However, Australian courts deny the enforceability in tort of any

general parental duty of maintenance of a child or any general custodial duty:
Rogers v Rawlings [1969]
 [page 6]

Qd R 262; Cameron v Commissioner for Railways [1964] Qd R 480; but

compare St Mark’s Orthodox Coptic College v Abraham [2007] NSWCA 185.
The ‘need to protect parents’ from actions brought by their children was one
of the grounds used by Crennan J in Harriton v Stephens (2006) 226 CLR 52;
226 ALR 391, to find that a doctor owed no duty of care to an unborn child
requiring the doctor to advise its mother of the likelihood of its being born
disabled: at [250].

Intellectually Disabled Persons

1.26 As with minors, an intellectually disabled person may sue or be sued
in torts and a legal representative will be appointed to act on his or her behalf:
Yonge v Toynbee [1910] 1 KB 215.

1.27 The more difficult issue is whether an intellectual disability will

provide a defence in a civil action in a similar way as is possible in a criminal
law action. The answer will depend first, upon the type and degree of
disability and, second, upon the requirements of the particular tort.
The defendant will not be liable if he or she is unable to control their bodily
actions so that they are acting in a state of automatism or, for example, where
the defendant is in a state of hypoglycaemic shock. However, where the
defendant is aware of the nature and quality of his or her act, then it is no
defence that the defendant is mentally incapacitated: Morris v Marsden [1952]
1 All ER 925; Adamson v Motor Vehicle Insurance Trust (1957) 58 WALR 56;
Carrier v Bonham [2002] 1 Qd R 474.

4 Comparison with Other Areas of the

Law
1.28 Just as there is overlap in the torts protecting an individual’s legal
rights (for example, both nuisance and negligence protect against indirect
interferences with the rights of possession of land), there is also overlap with
the protection afforded by other areas of the common law such as contract
and criminal law. The relationship between these common law areas can be
illustrated by the following diagram:

[page 7]

Contract and Torts

1.29 Initially, the law of contract excluded tortious liability when both had
potential application to the same set of facts. Some of the first exceptions to
this exclusionary rule were persons involved in common callings, such as
innkeepers, common carriers and surgeons, who were held liable in tort
unless such liability was expressly excluded under the contract: Groom v
Crocker [1939] 1 KB 194. Today in Australia, concurrent liability is possible
under both the law of torts and contract, unless such liability has been
excluded by statute or by the parties to the contract if that is statutorily
permitted: Travel Compensation Fund v Tambree (t/as R Tambree &
Associates) (2005) 224 CLR 627; 222 ALR 263; Astley v Austrust Ltd (1999)
197 CLR 1; 161 ALR 155; Voli v Inglewood Shire Council (1963) 110 CLR 74;
Hawkins v Clayton (1988) 164 CLR 539; 78 ALR 69.

1.30 Important differences between an action for breach of contract and a

tort action are as follows:
Generally, the law of contract seeks to vindicate a single right or
interest — the performance of a promise agreed to by parties to a
contract. The law of torts seeks to vindicate wider and more diverse
rights including personal safety and integrity, protection of property,
commercial interests and protection of reputation.
Under the law of contract, legal obligations are imposed in a factual
situation from which, as a minimum, an inference of agreement
between the parties can be assumed. In contrast, under torts law, legal
obligations are imposed in factual situations from which no
appearance of agreement can be inferred or assumed.
Damages for breach of contract represent the value of the loss of the
contractual bargain, including loss of any profit, whereas in torts,
damages represent compensation for the loss and injury flowing from
the negligent act or omission. Also, damages in contract may be the
same whether the breach is intentional or unintentional and
irrespective of motive, whereas for some torts damages may vary
because of these features.
The civil liability legislation in some states allows for the parties to a
contract to restrict the operation of the respective Acts other than
those aspects relating to proportionate liability and the assessment of
damages: Civil Liability Act 2002 (NSW) s 3A; Civil Liability Act 2003
(Qld) s 7(3); Civil Liability Act 2002 (Tas) s 3A; Wrongs Act 1958 (Vic)
s 28D; Civil Liability Act 2002 (WA) s 58.
For a discussion of the interaction between the tort of negligence and
contract law, see Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; 214
ALR 355; Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR
515; 205 ALR 522; Bryan v Maloney (1995) 182 CLR 609; 128 ALR 163.6

[page 8]

Crimes and Torts

1.31 The earliest torts were concerned with the punishment and
deterrence of wrongdoing, and the areas of crime and tort were not regarded
as separate areas of law until near the end of the 13th century. Today, one
important difference between torts and criminal actions is that the former are
initiated by and against parties in their individual capacities and are designed
to vindicate private rights. In comparison, criminal proceedings are largely
initiated and controlled by the state, with the aim of punishing those who
harm society by transgressing society’s rules and deterring others from doing
likewise.

1.32 The onus of proof in crime and torts also differs. The onus is on the
prosecution in a criminal trial to prove its case beyond reasonable doubt,
whereas in a civil torts action the plaintiff need only prove their case on the
balance of probabilities.

1.33 Another distinction arises in respect of the significance of intention.

As a general rule in criminal law, the accused must be shown not only to have
intended the act but also its consequences. In most torts, provided the
defendant’s act was voluntary, the tortfeasor may be liable for the
consequences of the wrongdoing whether they were intended or not: see 1.6.

1.34 The primary remedy in torts is compensatory damages, which have

the object of returning the injured party to the position they would have been
in had the wrong not been committed against them. The primary object of
criminal law penalties (for example, imprisonment, a fine or community
service) is to punish the wrongdoer and to deter others from engaging in
criminal activity. Moreover, in criminal law, the degree of punishment is
measured against the degree of culpability rather than the harm caused. In
torts, the remedy, which usually involves the calculation of the quantum of
damages, is determined by reference to the degree of harm suffered by the
plaintiff rather than by reference to the manner in which it was caused.

1.35 While the parallel development of the criminal law has reduced the
importance of the role of deterrence in tort law, as Hayne J commented in
Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391 at [165]:
… it is not useful to attempt to divide the litigious world into only two parts, one marked “civil”
and the other marked “criminal”. The litigious world is more complex than that. And as
Windeyer J pointed out in Uren v John Fairfax & Sons Pty Ltd [(1966) 117 CLR 118 at 149], “the
roots of tort and crime … are greatly intermingled”. No doubt this historical intermingling
contributes to the considerable overlapping that can be seen between the purposes to which the
law of tort and the criminal law seek to give effect. Because both the law of tort and the criminal
law have several and overlapping purposes and effects, it is incomplete to see the former as
concerned only with harm and its compensation, and the latter as concerned only with fault and
its punishment. [footnotes omitted]

1.36 The role of the torts law in deterring socially unacceptable behaviour
and promoting individual responsibility for wrongdoing is reflected, for
example, in the defence of illegality,7

[page 9]

which may provide a complete answer to a plaintiff’s action in tort: see

Chapter 13. Another example is provided by the remedies which may be
available in a tort action. As Brennan J commented in the High Court
decision in XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd
(1985) 155 CLR 448 at 471:
As an award of exemplary damages is intended to punish the defendant for conduct showing a
conscious and contumelious disregard for the plaintiff’s rights and to deter him from
committing like conduct again, the considerations that enter into the assessment of exemplary
 damages are quite different from the considerations that govern the assessment of
compensatory damages.

See also Lamb v Cotogno (1987) 164 CLR 1; Gray v Motor Accident
Commission (1998) 196 CLR 1; New South Wales v Ibbett (2006) 229 CLR
638.

1.37 Deterrence and concepts of individual responsibility may also have a

negative role to play in torts law in terms, for example of whether a cause of
action is recognised as existing on the facts of a particular case. In Cole v
South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469; 207
ALR 52, the High Court refused to find that the club management was liable
in negligence to an intoxicated club patron. The patron’s excessive
consumption of alcohol resulted in her being injured in a motor vehicle
accident outside the club’s premises. In Cole, the majority justices stressed the
importance of individuals accepting responsibility for their own actions as
being a factor in the role of the law of torts. These comments by Callinan J (at
[121]) are typical of the views of the majority:
Except for extraordinary cases, the law should not recognise a duty of care to protect persons
from harm caused by intoxication following a deliberate and voluntary decision on their part to
drink to excess. The voluntary act of drinking until intoxicated should be regarded as a
deliberate act taken by a person exercising autonomy for which that person should carry
personal responsibility in law. The respondent owed the appellant only the ordinary general
duty of care owed by an occupier to a lawful entrant. Heydon JA, with Santow JA agreeing held
that to extend the duty to the protection of patrons from self-induced harm caused by
intoxication would subvert many other principles of law and statute which strike a balance
between rights and obligations, and duties and freedoms.

5 The Evolution of Torts Law

1.38 The earliest reliable records of torts actions date from the reigns of
the English Kings, John and Henry III, in the early years of the 13th century.
These initial tort actions were concerned with property and feudal rights and
usually involved a violent interference with those rights.
1.39 By the middle of the 13th century, the trespass actions had become
well established, including civil assault, battery, false imprisonment, unlawful
entry onto land and the taking away of chattels (moveable possessions). These
early tort actions were commenced in court by a type of summons which used
the term quare, asking why the wrongdoer had harmed the plaintiff. The
common feature of these early torts, apart from the initiating summons, was
the direct nature of the interference with the plaintiff’s rights.

[page 10]

The quare trespass action also came to be used in cases where the plaintiff
could not satisfy the requirements of a trespass action, but nevertheless
attempted to explain why their case was aligned with, or was an extension of,
the trespass action. These actions formed a collection of torts which became
known as ‘trespass on the case’. The interferences were not usually as violent,
obvious and direct, and the feature of indirectness became associated with the
actions on the case. The negligence and nuisance actions are examples of
actions on the case. It was the negligence action which was destined to
become the dominant tort of the 20th and, at least the first decades of, the
21st centuries.

1.40 The ascendancy of the tort of negligence was hindered, however, by

the failure of the common law to develop a general principle for the basis of
liability in a negligence action. Instead, the courts continued to use the
precedents governing the forms of action to define (and limit) the specific
situations giving rise to legal responsibility for injury to persons and property.
Often the precedents used were based on a pre-existing or implied
contractual relationship, for example the relationship between passengers and
the carriers who undertook to convey them for reward: White v Boulton
(1791) Peake 113. However, the courts had also commenced to find duties in
road and sea accident situations which were not dependent upon some pre-
existing contractual relationship and which created a broader form of liability
for injury consequent upon negligence: see, for example, Mitchil (or Michael)
v Alestree (1676) 1 Vent 295; 3 Keb 650; 2 Lev 172.

1.41 Nevertheless, until the decision in Donoghue v Stevenson [1932] AC

562, judges continued to restrict the general application of the negligence
action by requiring cautious analogy with already established causes of action.
For example, reliance on notions of privity of contract as the basis of liability
of manufacturers in an era of expanding commerce was used to severely
curtail the liability of manufacturers, distributors and vendors in negligence
for harm caused by faulty products: Winterbottom v Wright (1842) 10 M &W
109.

1.42 In Donoghue v Stevenson [1932] AC 562, Lord Atkin attempted to

bring all negligence cases within a single principle, what has subsequently
been called the ‘neighbour’ principle. The essence of the neighbour principle,
as formulated by Lord Atkin (at 580), is that:
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.

This deceptively simple ‘neighbour’ principle was soon extended to cover

all physical damage cases and not just those concerned with the negligent
manufacture of goods: see Chapter 8.

1.43 During the second half of the 20th century, the negligence action was
extended, for example to cover all aspects of the employment relationship
(Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18), as well as non-physical
damage such as pure economic loss (Hedley Byrne & Co Ltd v Heller &
Partners Ltd [1964] AC 465; Mutual Life & Citizens Assurance Co
 [page 11]

Ltd v Evatt (1968) 122 CLR 556) and pure psychiatric injury: Mount Isa Mines
Ltd v Pusey (1970) 125 CLR 383; Jaensch v Coffey (1984) 155 CLR 549.
The result was that the tort of negligence became ‘an all-conquering
generalised action … infinitely adaptable and capable of applying to all forms
of social and economic activities’.8 The increasingly widespread availability of
insurance also had a positive influence on the development of the tort of
negligence. As Spigelman commented:
There seems little doubt that the attitude of judges has been determined to a very substantial
extent by the assumption, almost always correct, that the defendant is insured … Judges may
have proven more reluctant to make findings of negligence, if they knew that the consequence
was likely to bankrupt the defendant and deprive him or her of the family home.9

The Impact of Statute

1.44 While the common law courts were the primary creators of the early
law of torts, during the 19th century it became increasingly clear to many
people that the traditionally conservative nature of judicial law-making meant
that timely changes were more likely to come from parliament-made statute
law, rather than from the precedent-bound common law. It was primarily
parliaments, then, that enacted the legislation which changed or modified the
common law to take into account the political, economic and social changes
brought about by the Agricultural and Industrial Revolutions in both England
and Australia.

No-fault compensation
1.45 No-fault compensation schemes have replaced the fault-based torts
law systems in some areas of personal injury in response to political,
economic and social changes.

1.46 Injuries arising from the workplace It was the increasing

recognition that it was employers, rather than injured employees, who should
bear the financial responsibility for the cost of workplace accidents (and their
prevention) which resulted in the English Parliament enacting the 1897
English Workmen’s Compensation Act.
The distinguishing feature of workers’ compensation legislation is that
workers who are injured, or their health impaired, are compensated without
the need to prove that their employer was at fault. All that is generally
required is that there is a causal or temporal link between their injury and
employment. The legislation, therefore, shifts the cost of workplace accidents
from employees to employers: McGuire v Union Steamship Co of New
Zealand Ltd (1920) 27 CLR 570 at 578–83. Similar legislation was
subsequently enacted in each of the Australian states during the early years of
the 20th century: see 9.53.
A person injured at work is entitled to bring a common law action, with
limitations, in all jurisdictions, except in the Northern Territory: Return to
Work Act (NT) s 52(1).

1.47 Injuries arising from transport accidents All jurisdictions provide

no-fault schemes for personal injury arising from motor vehicle accidents.
The right to take a

[page 12]

common law action varies. For example, in the Northern Territory a person
injured in a motor vehicle accident has no common law action: Motor
Accidents (Compensation) Act 1979 (NT). In Tasmania, the compensation
available is limited but an injured person may have a common law action
(Motor Accidents (Liabilities and Compensation) Act 1973 (Tas)), and in
Victoria an injured person is entitled to no-fault benefits and may only take a
common law action if their injuries are serious: Transport Accident Act 1986
(Vic). In the other jurisdictions a common law action is available; however,
legislation places limits on the damages recoverable.

1.48 Victims of crime Criminal injury compensation schemes exist in all

jurisdictions, allowing a victim of a crime to receive limited compensation
from government funds: see Victims of Crime (Financial Assistance) Act
1983 (ACT); Victims Support and Rehabilitation Act 1996 (NSW); Victims of
Crime Assistance Act 2006 (NT); Victims of Crime Assistance Act 2009
(Qld); Victims of Crime Act 2001 (SA); Victims of Crime Assistance Act 1976
(Tas); Victims of Crime Assistance Act 1996 (Vic); Criminal Injuries
Compensation Act 2003 (WA).

Apportionment of liability
1.49 The defence of contributory negligence, which was a complete
defence at common law, provides another example of the limitations of the
common law and the need for legislative intervention. At common law, where
the plaintiff contributed, even in a small way, to the accident in which the
plaintiff was injured, no remedy would be available in tort. While the courts
did attempt to soften the harshness of the defence by the creation of, for
example, the ‘last opportunity’ rule, the defence continued to operate unjustly
until its statutory modification in the mid-20th century in all Australian
jurisdictions. The effect of the statutory modification has been to allow an
apportioning of liability between the defendant and the plaintiff depending
upon their respective fault: see Chapter 13.

Consumer protection
1.50 Parliaments have in the past enacted a wide range of legislation in the
area of consumer protection and fair trading. In 2010, a single, national law,
the Australian Consumer Law, encompassing consumer protection and fair
trading, was adopted by every state and territory: Competition and Consumer
Act 2010 (Cth) (formerly the Trade Practices Act 1974 (Cth)). The Australian
Consumer Law replaces the various national, state and territory consumer
laws to provide consistency.
Section 18 of the Australian Consumer Law (formerly s 52 of the Trade
Practices Act 1974 (Cth)), which prohibits a person, in trade or commerce,
from engaging in misleading or deceptive conduct, has had a significant
impact on torts law, especially the tort of negligence as it relates to negligent
misrepresentations, and the torts of deceit and passing off. For example, the
considerable difficulties in proving that a defendant who made
misrepresentations owed the plaintiff a duty of care in negligence, or it was
done with the intention to cause loss in respect of an action in deceit, do not
arise if the plaintiff takes an action under s 18 of the Australian Consumer
Law: see Chapter 19.

[page 13]

Civil liability legislation

1.51 It is the civil liability legislation enacted in response to the Review of
the Law of Negligence — Final Report10 (the Ipp Report) by all Australian
jurisdictions, however, which is likely to have the most significant and long-
lasting impact on the Australian law of torts.
The terrorist attacks in America on 11 September 2001, the collapse of
major Australian insurance providers, such as HIH Insurance and United
Medical Protection, and the consequent dramatic increase in insurance
premiums, forced Australian governments to rethink the operation of the tort
of negligence as it interacts with other areas of the law. Consequently, in May
2002, the Commonwealth, state and territory governments jointly agreed to
appoint a panel of eminent persons to examine and review Australian law as
it relates to actions for personal injury and death resulting from negligence,
regardless of whether the action is brought in tort, contract, under a statute,
or under any other cause of action: see the Ipp Report at [7.1]. On 2 October
2002, the panel delivered the Ipp Report, named after the chairperson of the
panel, Justice Ipp.
Many hoped that the Ipp Report would lead to a greater consistency
between the various Australian jurisdictions in regard to the law of torts.
Unfortunately, this has not been the case and, while all state jurisdictions
have enacted legislation in response to the Ipp Report, there remain
significant jurisdictional differences. Moreover, the state and territory
parliaments in some situations (for example, the liability of public authorities
and proportionate liability for property and pure economic loss claims)
enacted legislation which went beyond the reforms suggested in the Report,
leading to further divergences between various Australian jurisdictions: see
Civil Law (Wrongs) Act 2002 (ACT); Civil Liability Act 2002 (NSW);
Personal Injuries (Liabilities and Damages) Act 2003 (NT); Civil Liability Act
2003 (Qld); Civil Liability Act 1936 (SA); Civil Liability Act 2002 (Tas);
Wrongs Act 1958 (Vic); Civil Liability Act 2002 (WA).11

The Impact of Insurance

1.52 The role of insurance has been critical to the exponential growth of
the law of torts. This is especially the case in regard to third party insurance
and, to a lesser extent, in regard to indemnity (or first party) insurance. So
pervasive has been the influence of the availability of insurance, that Ipp
wrote:
The insurance industry wields a powerful influence in the politics of negligence. The 2002
insurance crisis demonstrated that insurance is the lifeblood, not only of commerce and
industry, but of medical and other professional services and many aspects of everyday life. The
events of 2002 showed that, without the availability of reasonably priced indemnity insurance,
the fabric of society is at risk.12

[page 14]
 See also Kirby J’s comments in Waller v James; Waller v Hoolahan (2006)
226 CLR 136; 226 ALR 457 at [45].

1.53 Under indemnity insurance (for example, a household insurance

policy), the insured is reimbursed for any loss regardless of whether or not
the loss was caused by a third party’s tortious conduct. It is only in
circumstances where the loss was tortiously caused that the insurance
company has the choice, under the equitable doctrine of subrogation, of
whether or not to recoup that loss through the tort system.

1.54 The operation of third party insurance, on the other hand, is only
relevant when the insured is found legally liable to compensate a third party
harmed by the insured’s tortious conduct. In these circumstances, third party
insurance may provide a defendant with critical protection against a ruinous
award of damages which may, because of the compensatory function of torts
law, be out of proportion to the defendant’s fault. For the injured plaintiff
there is the advantage that the tortfeasor’s insurer will have sufficient funds
from which to satisfy the award of damages.

1.55 As Cane has commented:

… the law of torts has come in practice to operate in a way which is very different from the way
a simple statement of the relevant legal rules, would suggest. The development of liability
insurance has altered the administration and financing of the tort system out of all recognition.
The vast majority of tort claims are settled out of court by the defendant’s insurance company,
so the behaviour of insurance companies is at least as important to an understanding of the way
the tort system is administered in practice as is the behaviour of lawyers and courts. In practice
most tort compensation is paid by insurers and not by the people who commit torts. When
individual tortfeasors did pay damages, lawyers were very concerned to justify this result. But
now that they do not generally do so, many lawyers have little interest in the question of how the
tort system should be financed.13

1.56 Despite the significant role that insurance has played in the
development of the law of torts, the common law courts have not adopted a
consistent approach as to whether or not it should be acknowledged as being
relevant in individual cases. In England, for example, in Davie v New Merton
Board Mills Ltd [1959] AC 604 at 627, Viscount Simonds expressed the
general position that:
… [it] is not the function of a court of law to fasten upon the fortuitous circumstances of
insurance to impose a greater burden on the employer than would otherwise lie upon him.

Yet in 1990, Lord Griffiths, in the same court, commented in Smith v Eric S
Bush (a firm) [1990] 1 AC 831 at 838 that:
… [e]veryone knows that all prudent, professional men carry insurance and the availability and
cost of insurance must be a relevant factor when considering which of two parties should be
required to bear the risk of loss.

1.57 A similar ambivalence towards acknowledging the role of insurance is

evident in Australian courts, although increasingly its existence has been
acknowledged in cases

[page 15]

involving personal injury and compulsory third party insurance: Kars v Kars
(1996) 187 CLR 354; Lynch v Lynch (1991) 25 NSWLR 411; Bowditch v
McEwan (2002) 36 MVR 235. In Imbree v McNeilly (2008) 236 CLR 510;
(2008) 248 ALR 647, the court overruled the principle from Cook v Cook
(1986) 162 CLR 376, that a learner driver owed a lower standard of care to a
passenger who was aware of their inexperience: see 11.23. Kirby J referred
specifically to the effect of compulsory third party motor vehicle insurance,
stating (at [108]):
Giving weight to the consideration of compulsory insurance accords with a growing
preparedness of the courts to acknowledge the influence of insurance, at least where it is
compulsory and provided by statute, in defining the content of legal liability. I would not
therefore ignore this consideration.

His Honour held that it was the existence of compulsory third party
insurance that obliged the court to overrule Cook v Cook and that the ‘fiction
of individual personal liability’ (at [112]) needed to be acknowledged:
 If such compulsory insurance were not part of the legal background to the expression of the
applicable common law, and if it were the case, or even possible, that someone in the position of
the driver (or the owner) of the vehicle would, or might, be personally liable for the
consequences of that person’s driving affecting a passenger (such as the appellant) or other third
party it is extremely unlikely, in my view, that the courts would impose on them liability, as in
the case of the appellant’s claim, sounding in millions of dollars. Such a course would be
unrealistic and futile, characteristics the courts usually endeavour to avoid: at [111]. [emphasis
in original]

In regard to other forms of damage, and especially pure economic loss, the
cost and availability of insurance as a factor in determining liability is less
clear: Esanda Finance Corporation v Peat Marwick Hungerfords (1997) 188
CLR 241 at 282 per McHugh J; L Shaddock & Associates Pty Ltd v Parramatta
City Council (No 1) (1981) 150 CLR 225; Perre v Apand Pty Ltd (1999) 198
CLR 180; 164 ALR 606; Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2003)
Aust Torts Reports ¶81-692.

The High Court

1.58 Until the early 1980s, the accepted approach to the law of torts in
Australia, and the common law world generally, was based upon the doctrine
of strict legalism — also referred to as legal formalism or the declaratory
theory of law. This approach regards the law as being a logical, self-contained
set of clear principles and rules which have a determinate meaning and
which, by a logical process of induction and deduction from case law and
legislation, are capable of supplying one right answer to every legal problem.
This approach to the law is reflected in Blackstone’s comment, in 1776, that
judges:
… are the depositories of the law; the living oracles who must decide in all cases of doubt and
who are bound by an oath to decide according to the law of the land.14

[page 16]

Even then, however, there was disquiet expressed by some judges as to the
infallibility of the current system. As Jessel MR stated in London Corporation
v Riggs (1880) 13 Ch D 798 at 805:
I am afraid that, whatever I may call my decision, it will, in effect, be making law, which I have
never had any desire to do; but I cannot find that the point is covered by any decided case, or
even appears to have been discussed in any decided case. The only satisfaction I have in deciding
the point is this, that it will in all probability be carried to a higher Court, it will be for that Court
to make the law, or as we say declare the law, and not for me.15

1.59 Since the 1980s, there has been considerable debate about the extent
to which judges should continue to conform (or at least claim to conform) to
strict legalism with its perceived limits on judicial reference to ‘policy’
considerations, community values and other non-rule-based considerations.
For example, Sir Anthony Mason has commented:
In recent years the High Court has been less inclined to pursue formal legal reasoning so far …
it is not surprising that the current legal reasoning extends beyond the narrow confines of legal
formalism. It is now accepted that, at the appellate level at least, judges do make law when they
extend, qualify or reshape a principle of law. Equally we accept that courts have a responsibility
to develop the law in a way that will lead to decisions which are “humane, practical and just” to
repeat the words of Sir Harry Gibbs. Judges do not carry out this responsibility in a vacuum, by
shutting their eyes to contemporary conditions. They must have an eye to the justice of the rule,
to the fairness and the practical efficacy of its operation in the circumstances of contemporary
society. A rule that is anchored in conditions which have changed radically with the passage of
time may have no place in the law of today.16

1.60 This approach to the law, termed ‘judicial activism’ by its

opponents,17 has been criticised as representing a challenge to both judicial
probity and the ability of judges to maintain ‘a sound grip on the applicable
law in particular cases’.18 Clearly, there is a tension between the claim to the
stability of objective principles and of the need for the law to be responsive to
various historical, social, economic and political factors.19

1.61 More recently, there has been a return to a more restrained approach
to the type of policy considerations that should be taken into account in
deciding novel questions of law. The emphasis is now on legal policy rather
than broader public policy informed by community values and other non-
rule-based considerations: see, for example, Cattanach v Melchior (2003) 215
CLR 1; 199 ALR 131; Travel Compensation Fund v Tambree (t/as R Tambree
& Associates) (2005) 224 CLR 627; 222 ALR 263 at [29] per Gleeson CJ.
This change in approach is apparent, for example, in the High Court
decision in the negligence case of Roads and Traffic Authority v Royal (2008)
245 ALR 653; 82 ALJR 870. Kirby J, one of the most ‘activist’ justices, and the
sole dissenting voice in the 4:1 decision,

[page 17]

considered that not to hold the defendant road authority partially responsible
for the motor vehicle accident in which the plaintiff was injured, would be
inconsistent with the function of the law of torts in terms of encouraging road
safety. His Honour said (at [117]):
To hold that the defendant motorist was the only tortfeasor liable for negligence … and to
exculpate the RTA [Roads and Traffic Authority] entirely for the dangers it caused at the
intersection, is to do nothing at all to address the “material contribution” involved in the RTA’s
conduct and omissions. Until such contributions are brought home to an authority such as the
RTA, no stimulus is provided by the law of negligence for risk assessment, measures of accident
prevention and safer highway design, construction and maintenance.

The majority of the High Court, however, was able to avoid consideration
of policy issues relating to accident prevention and the like, by finding that
the RTA’s negligence had ‘nothing to do with the collision in question’ and
should, therefore, not be regarded as causally significant in terms of the
accident which had actually occurred. Gummow, Hayne and Heydon JJ, for
example, said (at [25]):
In short, even if it could be said that the appellant’s breach of duty “did materially contribute” to
the occurrence of an accident, “by creating a heightened risk of such an accident” due to the
obscuring effect of one vehicle on another in an adjoining lane, it made no contribution to the
occurrence of this accident. [emphasis in original]

1.62 This approach can be compared with the more expansive approach to
policy considerations favoured by Santow and Tobias JJA of the New South
Wales Court of Appeal in Royal v Smurthwaite (2007) 47 MVR 401 and Toll
Pty Ltd v Dakic [2006] NSWCA 58.
Nevertheless, and regardless of the merits of the ongoing struggle between
‘the philosopher kings of policy and the black-letter lawyers who claim to
propound principle alone’,20 as Kirby J commented in Waller v James; Waller
v Hoolahan (2006) 226 CLR 136; 226 ALR 457 at [45]:
All decisions that recognise a cause of action in new circumstances or which alter the course of
the common law will have unforeseen consequences. Decisions which result in a change in legal
principle in, for instance, the law of torts, will inevitably have economic consequences and
ramifications for the insurance industry and the premium-paying population which cannot be
fully anticipated. Yet before and since Donoghue v Stevenson [[1932] AC 562] to the present day,
this has not been accepted as a reason why judges should refuse to express the common law
applicable to new circumstances and, where necessary, to develop and elaborate the common
law to meet changed social and technological circumstances.

Further Reading
R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis
Butterworths, Sydney, 2013, Ch 1.
D Heydon, ‘Judicial Activism and the Death of the Rule of Law’ (2003)
23 Aust Bar Rev 1.

[page 18]

D Ipp, ‘Themes in the Law of Torts’ (2007) 81 ALJ 609.

—, ‘The Politics, Purpose and Reform of the Law of Negligence’ (2007)
81 ALJ 456.
M Kirby, ‘Judicial Activism? A Riposte to the Counter-Revolution’
(2004) 24 Aust Bar Rev 219.
H Luntz, D Hambly, K Burns, J Dietrich and N Foster, Torts: Cases and
Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2012, Ch 1.
 B McDonald, ‘The Impact of the Civil Liability Legislation on the
Fundamental Policies and Principles of the Common Law of
Negligence’ (2006) 14 TLJ 268.
A Mason, ‘Future Directions in Australian Law’ (1987) 13 Mon LR 149.
J J Spigelman, ‘Negligence and Insurance Premiums: Recent Changes
in Australian Law’ (2003) 11 TLJ 291.
J Stapleton, ‘Tort, Insurance and Ideology’ (1995) 58 MLR 820.
P Stewart and A Stuhmcke, ‘The Rise of the Common Law in Statutory
Interpretation of Tort Law Reform Legislation: Oil and Water or a
Milky Pond?’ (2013) 21 TLJ 126.

1. See, for example, P Higgins, Elements of Torts in Australia, Butterworths, Sydney, 1970, pp 35–6.
2. See, for example, J Stapleton, ‘The Golden Thread at the Heart of Tort Law: The Protection of the
Vulnerable’ (2003) 24 Aust Bar Rev 135.
3. See also Australian Law Reform Commission (ALRC), For Your Information: Australian Privacy
Law and Practice, Report No. 108, 2008.
4. D Ipp, ‘Themes in the Law of Torts’ (2007) 81 ALJ 609 at 615.
5. See R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis Butterworths, Sydney, 2013, Ch
29.
6. See also J Swanton, ‘Concurrent Liability in Tort and Contract: The Problem of Defining the
Limits’ (1996) 10 JCL 21.
7. See, for example, J Goudkamp, ‘Can Tort Law be Used to Deflect the Impact of Criminal
Sanctions? The Role of the Illegality Defence’ (2006) 14 TLJ 20.
8. D Ipp, ‘Themes in the Law of Torts’ (2007) 81 ALJ 609 at 609.
9. J J Spigelman, ‘Negligence, the Last Outpost of the Welfare State’ (2002) 76 ALJ 432 at 433.
10. Commonwealth of Australia, Review of the Law of Negligence — Final Report (the Ipp Report),
October 2002, available at
<http://www.treasury.gov.au/ConsultationsandReviews/Reviews/2002/Review-of-the-Law-of-
Negligence>.
11. See P Stewart and A Stuhmcke, ‘The Rise of the Common Law in Statutory Interpretation of Tort
Law Reform Legislation: Oil and Water or a Milky Pond?’ (2013) 21 TLJ 126.
12. D Ipp, ‘The Politics, Purpose and Reform of the Law of Negligence’ (2007) 81 ALJ 456 at 456.
13. P Cane, Atiyah’s Accidents, Compensation and the Law, 5th ed, Butterworths, London, 1993, p 5.
14. Blackstone’s Commentaries on the Laws of England, 2nd ed, Clarendon Press, Oxford, 1776, Vol 1,
 p 69.
15. As Young J notes, ‘In the event, there was no appeal, and his Lordship’s judgment is still being
cited’: see ‘Current Issues’ (2008) 82 ALJ 71 at 73.
16. A Mason, ‘Future Directions in Australian Law’ (1987) 13 Mon LR 149 at 158.
17. See, for example, D Heydon, ‘Judicial Activism and the Death of the Rule of Law’ (2003) 23 Aust
Bar Rev 1 at 4.
18. D Heydon, ‘Judicial Activism and the Death of the Rule of Law’ (2003) 23 Aust Bar Rev 1 at 9.
19. See also M Kirby, ‘Judicial Activism? A Riposte to the Counter-Revolution’ (2004) 24 Aust Bar Rev
219.
20. D Ipp, ‘Themes in the Law of Torts’ (2007) 81 ALJ 609 at 614.
[page 19]
 Chapter 2

The Distinction Between Trespass

and Case

1 Introduction
2.1 The law of torts covers a wide variety of actions, but the actions may be
classified into two main groups — trespass actions and actions on the case.
The early common law was procedurally very formal and unless plaintiffs
could bring themselves within the terms of one of the recognised writs they
had no remedy. The first writ in tort emerged in the 13th century in respect of
forcible interferences with a person or their property in circumstances where
the King’s peace was threatened. It became necessary to allege that the
defendant had acted vi et armis contra pacem regis (by force and arms against
the King’s peace) even if that was a fiction. A breach of the peace was more
likely to arise where some direct invasion of person or property had taken
place, as it was likely to result in resistance and the resulting fracas would
necessitate the presence of the King’s forces to put a stop to the breach of the
peace. From this the action of trespass developed as the remedy against all
forcible, direct and immediate injuries, whether against the person, goods or
land of the plaintiff.
The trespass actions developed to maintain the King’s peace and to support
the deterrence function of the tort, the defendant had to prove that they were
not at fault in order to avoid liability. Further, the plaintiff did not have to
prove that they suffered loss as a result of the direct interference, just that
there had been an interference with their rights.
The action on the case, originally referred to as ‘trespass on the case’, was
developed to complement trespass. It provided a means of redress where the
injury was only consequential, that is, it was not a direct and immediate result
of the defendant’s act. In contrast to trespass, the plaintiff had to prove all the
elements of the action on the case, including that they had suffered damage as
a result of the interference.

2.2 The primary distinction between trespass and case was whether there
was a direct causal connection between a defendant’s conduct and the
interference with the plaintiff’s rights. If it was direct then there was an action
in trespass and if it was indirect then it was an action on the case: Scott v
Shepherd (1773) 2 Wm B1 892; 96 ER 525; Hutchins v Maughan [1947] VLR
131; Esso Petroleum Co Ltd v Southport Corporation [1954] 2 QB 182.

[page 20]

2.3 In England, there have been significant developments that have

changed the basis for the distinction between trespass and case from
directness to intention. With industrialisation in England in the 19th century,
there was an increase in the use of highways. Case law developed establishing
that trespasses on or to land adjoining a highway were not actionable, even if
direct, unless the plaintiff also established that the interference was
intentional or negligent: Holmes v Mather (1875) LR 10 Ex 261.

2.4 Through this distinction between highway trespass and non-highway

trespass, the element of fault crept into highway trespasses as a necessary part
of the plaintiff’s case and, in England, it started to encroach into other forms
of trespass in the form of a defence. Consent and inevitable accident had long
been recognised as defences to actions in trespass and the defence of
inevitable accident was extended in England to cases in which the
interference could not have been avoided even with the exercise of a degree of
skill and care: Stanley v Powell [1891] 1 QB 86; National Coal Board v J E
Evans & Co (Cardiff) Ltd [1951] 2 KB 861.
Stanley v Powell involved the defendant member of a shooting party firing
at a pheasant. One of the pellets from his gun deflected off the bough of a tree
and accidentally wounded the plaintiff, who was carrying cartridges and game
for the shooting party. The jury held that the defendant had not been
negligent in discharging the gun. In the light of that finding, Denman J held
that the defendant could not be liable in trespass. His Honour said (at 88):
[N]o decision was quoted, nor do I think that any can be found which goes so far as to hold, that
if A is injured by a shot from a gun fired at a bird by B, an action of trespass will necessarily lie,
even though B is proved to have fired the gun without negligence and without intending to
injure the plaintiff or to shoot in his direction.

2.5 Because trespasses, although originally based on directness, were

becoming associated with intention, and actions on the case, although
originally based on indirectness, were more associated with unintentional
interferences, a peculiar halfway house emerged. Where the interference was
both direct and unintentional, the plaintiff had the option to sue in either or
both trespass and case.

2.6 In 1959 in England, a further modification occurred when Diplock J

held that even in a non-highway trespass, the onus was upon the plaintiff to
show that the injury was not only the direct consequence of the defendant’s
act, but also that it was caused either intentionally or through negligence, that
is, through the defendant’s fault: Fowler v Lanning [1959] 1 QB 426. After
1959, trespass to the person on the highway in England no longer differed
from trespass committed in any other place and the onus of proving some
form of negligence, where the trespass was not intentional, was upon the
plaintiff, whether the action was framed in trespass or as an independent
action on the case for negligence.
 Finally, in 1964, the English Court of Appeal held that where an injury is
inflicted unintentionally, whether it be directly inflicted or not, the only cause
of action is an action on the case for negligence: Letang v Cooper [1965] 1 QB
232, a case in which the defendant negligently drove over the legs of the
female plaintiff as she sunbathed in a hotel car park. This remains the present
position in England. Unintentional injuries can no longer give rise to a cause
of action in trespass — they must be brought in an action on the case in
negligence. Intentional injuries may only be brought in trespass.

[page 21]

2.7 The position is not the same in Australia as in England, as the

Australian courts have only kept pace with some of the developments in
England. In Australia, it is the question of whether the interference was direct
that determines whether there is a trespass, not intention: Williams v Milotin
(1957) 97 CLR 465 (defendant’s truck striking the plaintiff cyclist); Blacker v
Waters (1928) 28 SR (NSW) 406; Exchange Hotel v Murphy [1947] SASR 112.
Further, although the distinction between non-highway trespass and highway
trespass in respect of trespass to person became part of Australian law, there
has been no abandonment of the differences in the onus of proof.

2.8 In McHale v Watson (1964) 111 CLR 384, Windeyer J considered the
English authorities but reaffirmed the Australian position that an action for
trespass in non-highway cases will lie for a direct voluntary contact; however,
the defendant can raise as a defence the absence of intention or that all
reasonable care was taken, that is, accepting the English developments up to
Stanley v Powell in 1891 but going no further. McHale v Watson involved a
child being struck in the eye by a metal dart thrown by the defendant child.
Because it was direct and unintentional, the plaintiff took the option of suing
in both trespass and case. The plaintiff failed in trespass because the
defendant in this non-highway case discharged the onus of proof in proving
absence of fault. The plaintiff also failed in negligence, failing to prove the
defendant was at fault. Windeyer J said (at 388):
But the question remains: Is it for the plaintiff to establish that the missile with which she was
hit was thrown with intent to hit her or so negligently that it did so or is it for the defendant who
threw it to prove an absence of intent and negligence on his part? I think the latter view is
correct.

2.9 In Australia, trespass lies for direct voluntary contacts without the need
of proof of actual damage, but in cases of direct unintentional interference
causing actual damage the plaintiff may sue either in trespass or negligence:
Hackshaw v Shaw (1984) 155 CLR 614; Venning v Chin (1974) 10 SASR 299;
West v Peters (1976) 18 SASR 338.
The conferring of such a choice means that Australia has accepted the
original distinction based on directness for trespass, but has moved to
accepting lack of intention as the criterion for case. Where there is a choice,
in a highway case there may be no advantage to a plaintiff suing in trespass
because proof of fault (intention or absence of due care) still lies with the
plaintiff. In a non-highway case, if the plaintiff sues in trespass, fault will not
have to be proven by the plaintiff, as the onus will lie on the defendant to
disprove fault.

2.10 Further, if there is an intentional infliction of harm, the plaintiff may

take action in trespass or case. In Wilson v Horne (1999) 8 Tas LR 363, the
Tasmanian Full Court held that the intentional assaults committed on the
plaintiff did not mean that only an action in trespass was available and that
the plaintiff was entitled to proceed with a claim in negligence.
This has also been confirmed by the High Court in New South Wales v
Lepore; Samin v Queensland; Rich v Queensland (2003) 212 CLR 511; 195
ALR 412. Actions were brought by former pupils against the education
authority for assaults committed by a teacher. The plaintiffs also sued the
teacher personally in trespass to the person. McHugh J noted that the
plaintiffs could have sued the teacher in negligence, as the fact that the
teacher had

[page 22]

intentionally inflicted the harm did not bar a claim in negligence. His Honour
noted (at [162]):
Historically, as long as a plaintiff did not make the intention of the defendant part of the cause
of action, the plaintiff could sue in trespass to the person or by an action on the case for the
direct infliction of force. At all events, that was the position before the enactment of the
Common Law Procedure Act 1852 (UK) and its analogues in Australia [Williams v Milotin
(1957) 97 CLR 465 at 470–1]. Since the abolition of the forms of action, a plaintiff may, if he or
she chooses, sue in negligence for the intentional infliction of harm [Gray v Motor Accident
Commission (1998) 196 CLR 1].

2.11 The trespass/case distinction is shown in the following diagram:

 [page 23]

2 Trespass
2.12 As the courts recorded facts and decisions of cases, precedents
developed and this led to the tort of trespass evolving into distinct nominate
torts. The actions of trespass provide protection for a plaintiff’s person
(assault, battery and false imprisonment), their land (trespass to land) and
their goods and chattels (trespass to chattels, conversion and detinue).
However, although the actions protect different interests, as trespass actions
they share the same distinguishing characteristics. The characteristics of the
trespass actions in Australia can be summarised as:
 a direct interference with person or property of the plaintiff;
the defendant at fault;
actionable per se; and
onus of proof differs upon the trespass being classified as highway or
non-highway.

Direct Interference
2.13 Direct means that the interference with the plaintiff’s rights followed
so closely on the defendant’s act that it could be considered part of that act:
Hutchins v Maughan [1947] VLR 131 at 133 per Herring CJ (the defendant by
laying baits for dogs, which were subsequently taken by the plaintiff’s dogs,
did not commit a trespass to the dogs as it was not direct). See also Rural
Export and Trading (WA) Pty Ltd v Hahnheuser (2007) 243 ALR 356 where
the court held that placing matter in the feeding troughs for sheep did not
amount to a direct interference with the sheep. Gray ACJ stated (at [72]):
There is an obvious distinction between direct interference of the kind required to constitute a
trespass and leaving something that sheep might or might not choose to eat in a place where
they might or might not choose to go for the purpose of eating.

The commonly used example to demonstrate what is a direct interference

comes from Fortescue J in Reynolds v Clarke (1725) 1 Stra 634; 93 ER 747. A
person going along a road, who is hit on the head by a log that is thrown, has
an action in trespass as the interference is direct. However, if the same person
comes upon a log thrown onto the road at an earlier point in time, and
receives an injury by falling over it, the injury is not direct, but indirect or
consequential, and an action on the case lies: cited in Scott v Shepherd (1773)
2 Wm B1 892; 96 ER 525 at 526 and Hutchins v Maughan at 133.

2.14 Not all decisions appear consistent with this formulation. In Scott v
Shepherd, a lighted squib or firework was thrown into a marketplace and was
then passed on by several parties before eventually exploding in the plaintiff’s
face, putting out one eye. Notwithstanding the chain of parties over a
temporal period, the interference was held to be direct and a trespass as the
parties had acted out of necessity for their safety and therefore their actions
did not break the chain of directness.

Fault of the Defendant

2.15 In trespass, the act complained of must have been done either
intentionally or with a lack of due care, referred to generally as ‘fault’.

[page 24]

Intention
2.16 In the trespass actions, the intention of the defendant is judged in
relation to the consequences of the act rather than the act itself. The motive of
the defendant is irrelevant. It is enough if the defendant must have known
that the consequences of the act were certain or substantially certain to
happen. Cane has stated:
The concept of “intention” is used loosely in tort law. Sometimes it appears as a synonym for
“voluntary”; sometimes it is described as a “motive”; and it is often used to embrace
recklessness.1

Therefore, to be intentional the act must be done deliberately, voluntarily

and with the intention of causing the interference or with knowledge of the
consequences that are likely to result. In Carter v Walker (2010) 32 VR 1 at
[215] it was stated:
… it may be that an act should also be considered intentional if it is substantially certain that the
act will result in contact with the plaintiff; and perhaps also if the act is reckless with respect to
contact with the plaintiff. [footnotes omitted]

2.17 A distinction can be made between intention and involuntariness. If a

defendant can prove that the interference was involuntary, then there can be
no trespass as the act could not be intentional: Smith v Stone (1647) Style 65;
82 ER 533 applied in Public Transport Commission (NSW) v Perry (1977) 137
CLR 107; 14 ALR 273. In Morriss v Marsden [1952] 1 All ER 925 at 927, it was
stated:
An intention — ie, a voluntary act, the mind prompting and directing the act which is relied on,
as in this case, as the tortious act — must be averred and proved. For example, I think that, if a
person in a condition of complete automatism inflicted grievous injury, that would not be
actionable. In the same way, if a sleepwalker inadvertently, without intention or without
carelessness, broke a valuable vase, that would not be actionable.

See also Hogan (an infant by his next friend Williams) v Gill (1992) Aust
Torts Reports ¶81-182, where a judge of the Supreme Court of Queensland
held that although the six-year-old defendant voluntarily pulled the trigger of
the gun with the intention of simulating the firing of a gun, he did not intend
to actually fire the bullet that was in the chamber of the gun, and which the
judge held he was probably unaware of.

Lack of care
2.18 The action of negligence is also associated with an absence of care,
often referred to as ‘fault’, on the part of the defendant. The fault required in
negligence refers to the defendant breaching the duty of care owed to the
plaintiff, that is, the failure of the defendant to achieve the objective standard
of care to avoid risk of injury to the plaintiff. The differences were highlighted
in the joint judgment in Williams v Milotin (1957) 97 CLR 465 at 474:
The two causes of action were not the same now and they never were. When you speak of a
cause of action you mean the essential ingredients in the title to the right which it is proposed to
enforce. The essential ingredients in an action of negligence for personal injuries include the

[page 25]

special or particular damage — it is the gist of the action — and the want of due care. Trespass
to the person includes neither. But it does include direct violation of the protection which the
law throws round the person.

Therefore, a defendant who acts carelessly in committing a direct

interference may be liable in trespass despite the fact that the act was not done
intentionally.

Actionable Per Se
2.19 All trespass actions are actionable per se. This means that the plaintiff
does not need to prove that they have suffered any loss or damage due to the
interference to succeed in their trespass action. The cause of action arises
upon the direct interference with the plaintiff’s rights as the law presumes
damage upon the interference with a legal right: Nicholls v Ely Beet Sugar
Factory Ltd [1936] 1 Ch 343. However, if the plaintiff has not suffered any
loss, this will impact on the assessment of damages: see 15.14.

Onus of Proof
2.20 In trespass actions, the general rule is that the onus of proof rests
upon the plaintiff to establish that the interference complained of was direct.
The onus then shifts to the defendant to prove that they were not at fault.
This shift in onus comes from the deterrence function of the tort; that is, the
wrongdoer must establish that they are not liable, rather than the plaintiff
proving that they are.
As noted at 2.7, the distinction between highway and non-highway
trespasses remains part of the Australian law, the High Court confirming that
in trespass in non-highway cases, the plaintiff need not prove fault of the
defendant: McHale v Watson (1964) 11 CLR 384. In a highway trespass,
therefore, a plaintiff has to prove fault on the part of the defendant (Lord v
Nominal Defendant (1980) 24 SASR 458), whereas in non-highway trespasses,
it is for the defendant to prove an absence of fault as a defence: Blacker v
Waters (1928) 28 SR (NSW) 406.
 3 Action on the Case
2.21 Just as the trespass actions developed into recognised actions, actions
on the case also developed into nominate torts such as negligence and
nuisance, associated with indirect injuries. However, not all indirect
interferences fall within the nominate actions — some remain innominate
actions on the case: see 2.25.
The characteristics of actions on the case are:
an indirect interference with the person or property of the plaintiff;
the interference may be either intentional or unintentional;
the plaintiff must have suffered damage as a result of the interference;
and
the onus of proof lies upon the plaintiff throughout.

[page 26]

4 Criticisms of the Australian Position

2.22 The trespass/case distinction is less significant today as some
jurisdictions have moved to no-fault accident schemes for road and
workplace accidents. However, there were signs that Australia will move
towards the English position and identify trespass actions based upon
intention rather than the directness of the act. In fact, trespass actions in
Australia are often referred to as the ‘intentional torts’. In Hackshaw v Shaw
(1984) 155 CLR 614 at 618–19, a non-highway trespass case involving a direct
but unintentional interference, Gibbs CJ made the following comment:
Although the allegation that the shooting was intentional was not pursued, the plaintiff claimed
in trespass as well as in negligence. The learned trial judge charged the jury that the burden lay
on the defendant to disprove negligence. In so far as the claim was for damages for trespass, the
charge proceeded on the view of the law taken by Windeyer J in McHale v Watson (1964) 111
 CLR 384 at 388–9, where it was held that in an action for trespass to the person, based upon
battery by a blow or a missile, the defendant must prove that he did not intend to hit the plaintiff
and that he was not negligent in delivering the blow or discharging the missile. The decision of
Windeyer J in that case was affirmed, but the question where the onus of proof lay was not
decided on appeal: see (1966) 115 CLR 199. The conclusion reached by Windeyer J finds
support in earlier authority, and his decision on the point has since been followed in South
Australia, although not in running down cases: Venning v Chin (1974) 10 SASR 299; (1975) 49
ALJR 378 at 379; West v Peters (1976) 18 SASR 338; Lord v Nominal Defendant (1980) 24 SASR
458. However a different view has been expressed in England: Fowler v Lanning [1959] 1 QB
426; Letang v Cooper [1965] 1 QB 232. This latter view appears to me, as at present advised, to be
the preferable one but, perhaps unfortunately, we are not now called upon to resolve this
difference of opinion. The inconvenience of the rule to which the learned judge gave effect in his
charge is obvious in a case where trespass and negligence are relied on in the alternative, since a
jury would almost certainly be confused by a direction that in relation to one cause of action the
defendant bears the onus of disproving negligence and in relation to the other the plaintiff bears
the onus of proving it. In fact the learned trial judge omitted to tell the jury that in a case based
on negligence the onus of proof lies on the plaintiff. That meant that there was a misdirection.
However no appeal was taken on that ground to the Full Court of the Supreme Court and
counsel for the defendant informed us, as he informed the Full Court, that no retrial is sought
on the ground of misdirection unless the court interferes with the finding of contributory
negligence.

2.23 In another non-highway case, Platt v Nutt (1988) 12 NSWLR 231, the
plaintiff was injured by a door which was slammed shut by the defendant, her
son-in-law, during an emotional domestic upheaval, in circumstances where
she would not have been injured except that she put her hand out to prevent
the door closing. She succeeded before the trial judge on the basis that in such
a non-highway trespass, the onus lay on the defendant to prove the absence of
negligence and the defendant had failed to discharge such onus.
On appeal to the Court of Appeal, the court confirmed that in an action for
trespass to the person, the plaintiff must prove, on the balance of
probabilities, that the interference was the direct result of the act of force of
the defendant. The plaintiff had failed to establish, on the balance of
probabilities, that her injuries had been caused by the defendant’s force rather
than her own act: at 240, 243, 247. Kirby P, in dissent, held that once it is
shown that the injuries were caused by the act of force of the defendant, the
onus is on the plaintiff
 [page 27]

to prove that the conduct causing the interference was either intentional or
negligent (at 237–40), that is, giving preference to the English developments
over McHale v Watson. Clarke JA (with whom Hope JA agreed) said in
relation to this non-highway situation (at 242–3):
The conclusion that it is necessary for the [plaintiff] to establish that her injuries were caused by
the actions of the [defendant] necessarily means that the onus of showing this lay on her. If she
failed to discharge this onus then she failed, in my opinion, to make out the trespass with which
the [defendant] was charged … [T]he trial judge was unable to determine on the evidence
whether the [plaintiff] in thrusting out her arm did so as a reflex action to a threatening
situation or in order to thwart the [defendant]. The consequence is that the [plaintiff] failed to
establish that her injury resulted from, or was caused by, the act of the [defendant].

2.24 Considering the comments of members of the High Court in

Northern Territory v Mengel (1995) 185 CLR 307 at 341; 129 ALR 1 at 14,
where liability in torts was divided between ‘either the intentional or
negligent infliction of harm’, it is only a matter of time before the High Court
adopts intention or its absence as the sole basis of categorising the trespass
actions and actions on the case. Until determination by the High Court on
this specific issue, the lower courts continue to apply the requirement that
there must be a direct act by the defendant through his or her fault: New
South Wales v Knight [2002] NSWCA 392 at [16] per Meagher JA. See also
Carter v Walker (2010) Aust Torts Reports ¶82-076, where it was argued by
counsel that the decision in Letang v Cooper [1965] 1 QB 232 had ‘effectively
declared the requirement of directness dead’: at [220]. The court disagreed,
stating (at [220]):
If that is what Denning MR declared in Letang, then its death has not become part of Australian
law. It is inconsistent with the basis upon which cases such as Horkin [v North Melbourne
Football Club Social Club] [1983] 1 VR 153 and Platt v Nutt (1988) 12 NSWLR 231 proceeded.

5 Innominate Actions on the Case

2.25 An action is innominate, that is, nameless, because it never achieved
prominence in the development of any of the trespass actions or actions on
the case, for example, negligence. Indirect intentional interferences that cause
injury are examples as they do not fall into the traditional trespass/nominate
action on the case dichotomy: see diagram in 2.11. Nevertheless, as the
interference is indirect it is possible to bring an action on the case. However,
none of the other nominate actions on the case, particularly negligence, seem
compatible with intentional wrongdoing. For example, the setting of a spring
gun which intentionally injures an intruder who comes upon it some time
later cannot be trespass in Australia, because it is indirect, yet it would seem
strange to describe it as negligence, because it is wilful. Hence, it is a special
form of action on the case: Bird v Holbrook (1828) 4 Bing 628; 130 ER 911.
See also 7.2 for intentional infliction of psychiatric injury.

2.26 In 1966, the High Court ‘created’ an innominate action on the case
when it held that a person who suffers harm or loss as the inevitable
consequence of the unlawful, intentional and positive acts of another, is
entitled to recover damages: Beaudesert Shire

[page 28]

Council v Smith (1966) 120 CLR 145. In the words of the High Court (at 156),
creating the short-lived action:
… independently of trespass, negligence or nuisance but by an action for damages upon the
case, a person who suffers harm or loss as the inevitable consequence of the unlawful,
intentional and positive acts of another is entitled to recover damages from that other.

This new action was little used after its creation and was the subject of
severe criticism. It was never relied upon successfully in later cases: see
discussion in Dunlop v Woollahra Municipal Council [1982] AC 158;
Copyright Agency Ltd v Haines [1982] 1 NSWLR 182; Munnings v Australian
Government Solicitor (1994) 118 ALR 385; 68 ALJR 169.
2.27 The action was abolished by the High Court in Northern Territory v
Mengel (1995) 185 CLR 307; 129 ALR 1. In that case, the Mengels owned two
cattle stations in the Northern Territory: Neutral Junction, which members of
the Mengel family acquired in 1962, and Banka Banka Station, which was
purchased in 1987. Banka Banka had a slightly higher rainfall and one of the
reasons for its purchase was so that cattle could be moved there from Neutral
Junction during drought.
Banka Banka had been purchased for approximately $3 million, financed
through a bank loan. The Mengels intended to repay $1 million of that loan
from the sale of cattle by the end of the 1988 season. However, they were not
able to fully realise their selling plans and suffered loss because of action taken
by two employees of the Northern Territory Department of Primary Industry
and Fisheries, a stock inspector and the Acting Chief Veterinary Officer and
Chief Inspector of Stock for the Northern Territory. It was clear that there
was no statutory or other authority for the acts of the inspectors,
notwithstanding that they were furthering the aims of a government-
sponsored campaign to eradicate bovine brucellosis and tuberculosis.
The Mengels sued in the Supreme Court of the Northern Territory,
claiming damages against the Northern Territory and also against the
inspectors. For the purposes of the appeal, the claim was described as one
based on the unauthorised acts of the inspectors. The plaintiffs claimed they
suffered pure economic loss because the government inspectors quarantined
and forbade the proposed sale of the plaintiffs’ cattle on the basis that the
cattle may have been infected with brucellosis. The inspectors, in fact, acted
outside their authority but did so neither intentionally nor recklessly
indifferent as to whether they had the power so to act. The plaintiffs
formulated their claim against the inspectors and the territory in several
different ways, including upon the principle in Beaudesert Shire Council v
Smith (1966) 120 CLR 145: misfeasance in public office and negligence. They
were ultimately unsuccessful in all causes of action. The majority Justices in a
joint judgment stated:
 The lack of authoritative support for the principle stated in Beaudesert, the difficulties associated
with the notions of unlawful act ‘and inevitable consequence’, and the further difficulty of
reconciling liability under that principle with the limitations upon liability for negligence and
for breach of statutory duty and with the general trend of legal development confining liability
to intentional or negligent infliction of harm compel the conclusion that Beaudesert should no
longer be followed: at CLR 539; ALR 16 per Mason CJ, Dawson, Toohey, Gaudron and McHugh
JJ.

[page 29]

2.28 If the evolution towards distinguishing actions in trespass from

actions on the case, based on intention rather than directness, is completed in
Australia, then it may open up the categories of trespass to include these
aberrant, innominate cases since they are clearly intentional wrongs.
Following the introduction of the civil liability legislation in Australian
jurisdictions after a national review of the law of negligence, there was
renewed interest in the intentional torts as the legislation that imposed
restrictions upon the awards of damages for personal injury may not apply to
intentional torts.

Further Reading
R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis
Butterworths, Sydney, 2013, Ch 2.
T Cockburn and B Madden, ‘A Renewed Interest in Intentional Torts
Following Legislative Changes to the Law of Negligence?’ (2006) 14
Tort L Rev 161.
H Luntz, D Hambly, K Burns, J Dietrich and N Foster, Torts: Cases and
Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2012, Ch 11.
S Yeo, ‘Comparing the Fault Elements of Trespass, Action on the Case
and Negligence’ (2001) 5 SCULR 142.
1. P Cane, ‘Mens Rea in Tort Law’ (2000) 20 OJLS 533 at 554.
[page 31]
 Chapter 3

Trespass to Person

1 Introduction
3.1 The law has always claimed, through development of its rules, to place
the highest value on the personal integrity and the safety of individuals.
Conduct which threatened the safety of the person or which affronted
personal comfort, dignity or freedom was almost certainly always actionable
as a tort from the earliest days. The very first actions in tort involved violent
wrongs to the person, that is, trespass to the person.
Whether personal safety and integrity were achieved always remains
questionable. Accessing the legal system to attract the benefit of the rules
required sufficient status and finances to mount an action. Even today,
infringement of privacy, domestic violence and child abuse may still largely
fall outside the ambit of protection provided by the civil actions of trespass to
person.

3.2 In Australia, trespass to person under the common law encompasses

three separate nominate torts:
battery (actual violence);
assault (a threat of violence); and
false imprisonment (deprivation of liberty).
The three actions are separate and distinct. Therefore, although it may be
common for a battery (the application of force) to be preceded by an assault
(a threat of force), they are two separate actions. In Collins v Wilcock [1984] 1
WLR 1172, Robert Goff LJ explained the three torts (at 1177–8):
The law draws a distinction, in terms more easily understood by philologists than by ordinary
citizens, between an assault and a battery. An assault is an act which causes another person to
apprehend the infliction of immediate, unlawful force on his person; a battery is the actual
infliction of unlawful force on another person. Both assault and battery are forms of trespass to
the person. Another form of trespass to the person is false imprisonment, which is the unlawful
imposition of constraint upon another’s freedom of movement from a particular place.

2 Battery
3.3 The aim of the tort of battery is to protect the plaintiff against
unwelcome and unwanted contact with their person. In Carter v Walker
(2010) Aust Torts Reports ¶82-076 at [215], the common law tort of battery
was described in the following terms:
(1) it is a species of trespass to the person;

[page 32]

(2) it is a so-called “intentional” tort, but care needs to be taken in considering the intention
which is relevant;
(3) as a starting point, it involves the defendant doing an act which causes physical contact
with the plaintiff;
(4) the act must be voluntary, that is, directed by the defendant’s conscious mind [see, for
example, Hogan [an infant by his next friend Williams] v Gill (1992) Aust Torts Reports
¶81-182; Morriss v Marsden [1952] 1 All ER 925 at 927; and Weaver v Ward (1617) 80
ER 284];
(5) … the act must have a direct rather than a consequential impact upon the plaintiff …;
(6) it does not require that the defendant intend the plaintiff any harm, or that the plaintiff
suffer harm in fact. It is actionable per se;
(7) if the act is voluntary, and the defendant “meant to do it” [McNamara v Duncan (1971)
26 ALR 584 at 587 (Fox J)] in the sense of meaning to contact the plaintiff, it will be
relevantly intentional;
(8) it may be that an act should also be considered intentional if it is substantially certain
 that the act will result in contact with the plaintiff; [see the discussion in Francis
Trindade, Peter Cane and Mark Lunney, The Law of Torts in Australia (4th ed, Oxford
University Press, Melbourne, 2007), pp 39–41]; and perhaps also if the act is reckless
with respect to contact with the plaintiff [ibid pp 41–3]. …

To establish an action in common law battery, the following elements must

be present:
a direct application of force to the person of the plaintiff;
no consent to the application of force by the plaintiff; and
fault of the defendant.

Direct Application of Force

3.4 As a trespass action, battery requires that the interference with the
plaintiff’s person is direct. Therefore, the interference complained of must be
the immediate result of the defendant’s action: see 2.11. However, in
Queensland, due to the courts applying the definition of assault in s 245 of the
Criminal Code 1899 (Qld) to civil claims of battery and assault, an indirect
application of force may be actionable as a battery: see 3.37 for further
discussion.

3.5 The contact required for a battery is bodily contact — that is, the
immediate effect of the defendant’s act causes contact with the plaintiff’s
person. A defendant punching a person is a direct application of force, but so
is the throwing of an object at a person if that object comes into contact with
their body: see Duyvelshoff v Dionysuis (1990) 13 Qld Lawyer 10 (defendant
threw a stubbie bottle or aluminium can at the plaintiff).
In Haystead v Chief Constable of Derbyshire [2000] 3 All ER 890, the
appellant was convicted of battery of a child after he punched the woman
holding the child in the face. The blow caused the child to fall from the
woman’s arms and to hit his head on the floor. The court held that although
most batteries are directly inflicted, either by striking or by a thrown missile,
the appellant’s punch was the entire and immediate cause of the woman
losing hold of the child. Laws LJ stated (at 896):

[page 33]

There is no difference in logic or good sense between the facts of this case where the defendant
might have used a weapon to fell the child to the floor, save only that it is a case of reckless and
not intentional battery.

The following are examples of battery:

to cut a person’s hair against their will, or without their consent (Forde
v Skinner (1830) 4 C & P 239; 172 ER 687);
to strike a horse so it throws its rider (Dodwell v Burford (1669) 1 Mod
24; 86 ER 703);
to throw a firework that is passed on by several parties until hitting a
person (Scott v Shepherd (1773) 2 Wm B1 892; 96 ER 525); and
to pull a chair from a person so that they are thrown to the floor:
Hopper v Reeve (1817) 7 Taunt 698; 129 ER 278. See also Garratt v
Dailey (1955) 279 P 2d 1091.

3.6 The word ‘application’ connotes some positive action, that is, there
must be some act rather than merely passive obstruction. In Innes v Wylie
(1844) 1 Car & Kir 257; 174 ER 800, it was alleged that the defendant, a police
officer, prevented the plaintiff from entering a room by standing in the
doorway. Denman CJ directed the jury that if the defendant had stood
‘entirely passive like a door or a wall put to prevent the plaintiff from entering
the room’, this could not amount to a battery: at Car & Kir 263; ER 803.

Offensive Contact
3.7 By the definition of ‘battery’, any bodily contact may constitute battery
if done without consent. However, the law has placed limits on the type of
contact that may give rise to a battery as the aim of battery is to protect
against unwanted contact. In general terms, to amount to a battery the alleged
interference must be offensive contact with the plaintiff’s person. The
physical contact required for common law battery was summarised in
Slaveski v Victoria [2010] VSC 441 at [241]–[242]:
Battery is an act that directly and intentionally (or negligently) causes offensive physical contact
with another’s person.

Any physical contact, however slight, is capable of constituting a battery, but the contact must
be offensive in the sense that it goes beyond that which is part of the “ordinary incidents of
social intercourse” or that which is “generally acceptable in the ordinary conduct of daily life.”
Consequently, the jostling between persons that is inevitable in public areas, such as
supermarkets, train stations, crowded buses or busy streets, is not actionable as a battery; nor is
the touching of a person in order to engage his or her attention, provided the physical contact is
reasonably necessary for that purpose and does not impose a restraint upon the person.
[footnotes omitted]

Anger or hostility
3.8 It has been said that ‘the least touching of another in anger is a battery’:
Cole v Turner (1704) 6 Mod Rep 149; 90 ER 958. This could mean that
virtually any contact with the plaintiff, no matter how trivial, would amount
to a trespass, and the extent of force used would generally be unimportant if it
was done in anger.

[page 34]

3.9 In England, an action in battery required actual hostility (Wilson v

Pringle [1987] QB 237) but since the decision of Re F (Mental Patient:
Sterilisation) [1990] 2 AC 1 at 73, this seems no longer to be the case:
In the old days it used to be said that, for a touching of another’s person to amount to a battery,
it had to be a touching “in anger” (see Cole v Turner (1794) [sic] 6 Mod 149 per Holt CJ); and it
has recently been said that the touching must be ‘hostile’ to have that effect (see Wilson v Pringle
[1987] QB 273, 253). I respectfully doubt whether that is correct. A prank that gets out of hand;
an over-friendly slap on the back; surgical treatment by a surgeon who mistakenly thinks that
 the patient has consented to it — all these things may transcend the bounds of lawfulness,
without being characterised as hostile. Indeed, the suggested qualification is difficult to reconcile
with the principle that any touching of another’s body is, in the absence of lawful excuse,
capable of amounting to a battery and a trespass.

See Rixon v Star City Pty Ltd (2001) 53 NSWLR 98 where the plaintiff sued
for an employee of the defendant placing a hand on his shoulder to gain his
attention. Referring to Cole v Turner and Re F (Mental Patient: Sterilisation),
Sheller JA noted (at [51]–[52]) that the physical contact could be a battery
and that the lack of anger or hostility was not sufficient to conclude that there
was no battery.

Contact as part of everyday life

3.10 The law has long recognised that there are a multitude of daily
personal contacts of a trivial or inconsequential nature which must be
suffered as part of going about normal business in society: Boughey v R (1986)
161 CLR 10. The normal operation of society would collapse if individuals
could complain of trespasses based upon merely being jostled on a bus,
pushed and shoved while boarding a crowded train or while shopping or
receiving a hearty congratulatory slap on the back.

3.11 These forms of contact were at one time regarded as examples of

implied consent of the plaintiff simply by participating in society: see 6.13.
Now it is more common for such forms of contact to be treated as falling
within a general exception, embracing all physical contact that is generally
acceptable in the ordinary conduct of daily life: Collins v Wilcock [1984] 1
WLR 1172 at 1176–8 per Robert Goff LJ; Darby v Director of Public
Prosecutions (2004) 61 NSWLR 558 at [80]–[81]. The current law is reflected
in Re F (Mental Patient: Sterilisation) [1990] 2 AC 1 at 72–3:
Of course, as a general rule, physical interference with another person’s body is lawful if he
consents to it; though in certain limited circumstances the public interest may require that his
consent is not capable of rendering the act lawful. There are also specific cases where physical
interference without consent may not be unlawful — chastisement of children, lawful arrest,
self-defence, the prevention of crime, and so on. As I pointed out in Collins v Wilcock [1984] 1
 WLR 1172, 1177, a broader exception has been created to allow for the exigencies of everyday
life — jostling in a street or some other crowded place, social contact at parties, and such like.
This exception has been said to be founded on implied consent to bodily contact of this kind.
Today this rationalisation can be regarded as artificial; and in particular, it is difficult to impute
consent to those who, by reason of their youth or mental disorder, are unable to give their
consent. For this reason, I consider it more appropriate to regard such cases as falling within a

[page 35]

general exception embracing all physical contact which is generally acceptable in the ordinary
conduct of everyday life.

In McDonald v Parnell Laboratories (Aust) Pty Ltd [2007] FCA 1903 at

[99], the exception was summarised in the following terms:
Mere physical contact is insufficient to establish either of these torts [assault and battery]. Under
the common law “commonplace, intentional but non-hostile acts such as patting another on the
shoulder to attract attention and pushing between others to alight from a crowded bus” are “if
committed inoffensively” not sufficient to constitute battery (see Boughey v R (1986) 161 CLR 10
at 24–26). Any general principle that “any touching of another person, however slight may
amount to a battery”, is subject to “a general exception embracing all physical contact which is
generally acceptable in the ordinary conduct of daily life” (see Darby v Director of Public
Prosecutions (2004) 61 NSWLR 558 at [80]–[81] quoting Collins v Wilcock [1984] 3 All ER 374
at 378).

See Secretary, Department of Health and Community Services v J W B & S

M B (Marion’s Case) (1992) 175 CLR 218 at 233 per Mason CJ, Dawson,
Toohey and Gaudron JJ. In Rixon v Star City Pty Ltd (2001) 53 NSWLR 98 at
[55], above, the court held that the conduct of the employee in the
circumstances was for the purpose of gaining the plaintiff’s attention and was
‘generally acceptable in the ordinary conduct of daily life’.

3.12 Some would view the exception as an undesirable development as it

suggests there is some objective form of behaviour which all members of
society must tolerate. However, the exception does raise the question of what
is the objective standard? Should people have to suffer unwelcome physical
contact simply because this is regarded as generally acceptable behaviour in
ordinary daily life? Should schoolboys have to suffer initiations, victimisation
or other horseplay because that is thought to be the sort of thing which
adolescents are wont to do? Changing social values also render offensive
today conduct which was apparently acceptable in the past, including the
many forms of sexual harassment.

Lack of Consent
3.13 The lack of the plaintiff’s consent to the application of force is not
clearly expressed to be an element of common law battery: see Christopherson
v Bare (1848) 116 ER 554; Carter v Walker (2010) Aust Torts Reports ¶82-076
at [215]; Marion’s Case (1992) 175 CLR 218 at 311. Consent may be raised as
a defence against a claim in battery (McNamara v Duncan (1971) 26 ALR
584); however, in Christopherson v Bare and Sibley v Milutinovic (1990) Aust
Torts Reports ¶81-013 it was held that the onus of proving the lack of consent
to the contact was with the plaintiff. The issue of whether lack of consent was
an element of battery was examined in White v Johnston (2015) 87 NSWLR
77 (respondent alleged that dental treatments by appellant dentist amounted
to a battery) with Leeming JA concluding, in obiter, that it was the plaintiff to
prove the absence of valid consent.
However, see Dean v Phung [2012] NSWCA 223 at [48] where the court
stated that consent was a defence to trespass to person. In that case, the
plaintiff alleged that consent to dental treatment was obtained by fraud (as it
was represented that the procedures were reasonably necessary when they
were not) and therefore not valid. The court held that ‘where a real issue has
been raised as to the existence of a valid consent, the burden of proof will lie
on

[page 36]

the defendant practitioner to establish that the procedure was undertaken

with consent’: at [64].

3.14 The plaintiff’s consent may be express or implied and whether there
was consent is a question of fact: Hunter and New England Area Health
Service v A by his Tutor T (2009) 74 NSWLR 88 at [40]. For a detailed
examination of consent to trespass to person, see Chapter 6.

Knowledge of the Contact

3.15 Knowledge is not an essential element of battery on the part of either
party. A person kissed, touched or otherwise interfered with while asleep, or
an unconscious person kicked by an assailant, will be entitled to sue, although
each had no knowledge of the interference at the time.
A defendant who does not know of the contact with the plaintiff may still
be liable, for example, if the defendant in a car ran down the plaintiff
believing the object was not a person: Law v Visser [1961] Qd R 46.

Fault
3.16 There is no liability in battery unless the interference was voluntary
and the defendant intended the impact or caused it negligently: Cole v Turner
(1704) 6 Mod Rep 149; 90 ER 958; Exchange Hotel v Murphy [1947] SASR
112. Therefore, if the defendant intends to strike one person but hits the
plaintiff instead, they will be at fault and liable in battery: Livingstone v
Ministry of Defence [1984] NILR 356 (CA); Bici v Ministry of Defence [2004]
EWHC 786 (QB). The interference must be voluntary in the sense that it
must be ‘the mind prompting and directing the act’: Morris v Marsden [1952]
1 All ER 925 at 927. In Duyvelshoff v Dionysuis (1990) 13 Qld Lawyer 10, the
defendant argued that he was not at fault as when he threw an object at the
plaintiff he was mentally unstable. The court held that although the medical
evidence noted that the defendant’s self-control was impaired, it was not
destroyed and as he knew the nature and the quality of his act at the time he
committed it, the defendant was liable: see 2.15.

3.17 It is not necessary that the defendant intended to harm the plaintiff:
Cowell v Corrective Services Commission of New South Wales (1988) 13
NSWLR 714 at 743. Fault is judged in relation to:
whether contact with the plaintiff was intended; or
the contact was the substantially certain result of the defendant’s act; or
the contact was the result of the defendant’s reckless disregard or lack
of care.
See Carter v Walker (2010) Aust Torts Reports ¶82-076 at [215].

3.18 Many judges tend to regard battery as an intentional tort only and the
more substantive negligent contacts are adequately disposed of in
independent negligence actions: Australian National Airways Ltd v Phillips
[1953] SASR 278; Hackshaw v Shaw (1984) 155 CLR 614 at 618–19. In
practice, plaintiffs tend to sue in trespass for intentional acts and in
negligence for acts that are unintentional: see 2.9.

[page 37]

3 Assault
3.19 It is common for the term ‘assault’ to be used to describe what is in
legal terms a battery: see, for example, Trevitt v NSW TAFE Commission
[2001] NSWCA 363 at [42]. See also 3.37, as in Queensland the application of
the definition of assault in s 245 of the Criminal Code in civil cases leads to
what is in fact a battery under the common law being called an assault.
However, at common law, assault occurs when one person creates in
another an apprehension of imminent harmful or offensive direct contact and
there is a reasonable belief that they have the ability to carry out that threat.
The tort of assault involves:
a threat of imminent harmful or offensive contact;
a reasonable belief on the part of the plaintiff that the defendant has
the ability to carry out the threat; and
intention on the part of the defendant.

Threat
3.20 To be an assault there must be a positive act by the defendant. This
may be a threatening gesture or act, alone or accompanied by a verbal threat.

Imminent
3.21 As it is a trespass action, the threat must be one of imminent harm. In
R v Gabriel [2004] ACTSC 30 at [105], the example was given that ‘a recipient
of a threat to punch … delivered by a telephone call could not reasonably
believe that a punch was imminent’. Imminent does not necessarily equate
with ‘without delay’, but neither does it encompass a future remote time: at
[112]. All of the circumstances are taken into account. For example, in Zanker
v Vartzokis (1988) 34 A Crim R 11, the plaintiff was in the defendant’s
moving car when the defendant stated: ‘I am going to take you to my mate’s
house. He will really fix you up’. The trial judge held that there was no assault
as there was no fear of immediate violence. On appeal the plaintiff was
successful, White J stating (at 14):
The threat was, it is true, to be carried out in the future but there was no indication by the
defendant whether the “mate’s house” was around the next corner or several or more streets
away in the suburban area. A present fear of relatively imminent violence was instilled in her
mind from the moment the words were uttered and that fear was kept alive in her mind, in the
continuing present, by continuing progress, with her as prisoner, towards the house where the
feared violence was to occur.

Mere words
3.22 Originally, it was thought that mere words without any threatening
gesture could not amount to an assault: Tuberville v Savage (1669) 1 Mod Rep
3; 86 ER 684. However, this proposition has been questioned1 and now if the
words constitute a real threat of imminent harm, it may be an assault.

[page 38]

In Barton v Armstrong [1969] 2 NSWR 451, the defendant, who was a high-
profile politician, threatened the plaintiff with violence to get him to sign a
deed giving effect to a number of commercial deals. The plaintiff signed the
deed as a result of those threats, some of which were made over the telephone.
The plaintiff sued the defendant for threats of violence which were alleged to
constitute an assault. The defendant argued that the threats could not
constitute an assault, as they were made over the telephone and were merely
words. Taylor J (at 455) held that telephone threats could constitute an
assault:
[I]t is clear from the many authorities cited on this subject that mere words themselves are not
sufficient to constitute an assault and that the threatening act must put the victim in immediate
fear or apprehension of violence. For these reasons [counsel for the defendant] contended that
all threats over the telephone could not in law be capable of constituting an assault. I am not
persuaded that threats uttered over the telephone could not in law be capable of constituting an
assault. I am not persuaded that threats uttered over the telephone are to be properly categorized
as mere words. I think it is a matter of the circumstances. To 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.

In Zanker v Vartzokis (1988) 34 A Crim R 11 at 16, White J, referring to

Barton v Armstrong, questioned whether mere words could amount to an
assault if the plaintiff was at liberty. The decisions of Barton and Zanker were
questioned in Knight v R (1988) 35 A Crim R 314 (threats of violence by
telephone) and R v Gabriel (2004) 182 FLR 102. From these cases it appears
that it may be argued that mere words amount to an assault if the threat is
one of imminent harm, not at some future time. This means that there must
be evidence of the imminence of physical harm, it is not sufficient that the
plaintiff immediately apprehends harm upon being threatened: Balven v
Thurston [2013] NSWSC 210 at [35]. In Slaveski v Victoria [2010] VSC 441 at
[240], the judge reviewed the above cases and concluded:
… there is no rule preventing a threat of physical harm which is not accompanied by any
physical contact — such as a threat made over the telephone or by email or other electronic
means — from constituting an assault. Such a threat can constitute an assault provided that all
the elements of the tort are established, including that the threat is to inflict immediate physical
harm.

See also Balven v Thurston, where threats were made by text messages and
on appeal it was held that the threats were ‘expressed in an indeterminate
manner’: at [37]. Although the evidence was that there was an apprehension
of harm, the threats suggested harm would occur at an indeterminate time in
the future and therefore there was no assault.

3.23 In R v Ireland [1998] AC 147, the House of Lords considered the issue
of whether repeated telephone calls to three women by the defendant, in
which the defendant remained silent, could amount to assault. The decision
of Taylor J in Barton v Armstrong was approved, Lord Steyn holding (at 162):
The proposition that a gesture may amount to an assault, but that words can never suffice, is
unrealistic and wholly indefensible. …
That brings me to the critical question whether a silent caller may be guilty of an assault. The
answer to this question seems to me to be “Yes, depending on the facts.” It involves questions

[page 39]

of fact within the province of the jury. After all, there is no reason why a telephone caller who
says to a woman in a menacing way “I will be at your door in a minute or two” may not be guilty
of assault if he causes his victim to apprehend immediate personal violence. Take now the case
of the silent caller. He intends his silence to cause fear and he is so understood. The victim is
assailed by uncertainty of his intentions. Fear may dominate her emotions, and it may be the
fear that the caller’s arrival at her door may be imminent. She may fear the possibility of
immediate personal violence. As a matter of law the caller may be guilty of an assault; whether
 he is or not will depend on the circumstances and in particular on the impact of the caller’s
potentially menacing call or calls on the victim.

Lord Hope of Craighead agreed, stating (at 166):

He was using his silence as a means of conveying a message to his victims. This was that he
knew who and where they were, and that his purpose in making contact with them was
malicious as it was deliberate. In my opinion silent telephone calls of this nature are just as
capable as words or gestures, said or made in the presence of the victim, of causing an
apprehension of immediate and unlawful violence.

In contrast, the decision of Balven v Thurston [2013] NSWSC 210 held

there was no assault despite evidence that the person making the threats had
entered the victim’s home, destroyed property and had followed his victim,
the court holding that this ‘bore no necessary relationship to the infliction of
harm’: at [39].

Ability to Carry Out the Threat

Knowledge of threat
3.24 For there to be an assault, the plaintiff must be aware of the threat. As
the tort involves a reasonable expectation of infliction of force, some
knowledge grounding the expectation is necessary otherwise there can be no
apprehension: Police v Greaves [1964] NZLR 295. Therefore, to point a gun at
a person from behind without his or her knowledge would not normally be
an assault unless some accompanying words were used to generate the
apprehension. Similarly, to threaten a sleeping or unconscious person cannot
be an assault even if the person later is made aware of the threat. In R v
Phillips (1971) 45 ALJR 467, the defendant had pushed a girl to the ground,
causing her to strike her head and render her unconscious. He dragged her
body to the edge of a river and left her there. When the tide came in, she
drowned. The court considered whether there had been assault by moving
her to the edge of the river. Barwick CJ stated (at 472):
The deceased at all times relevant in this connection was unconscious. There was thus no
 question of assault in the common law sense of the word. Such an assault necessarily involves
the apprehension of injury or the instillation of fear or fright.

Actual or apparent ability

3.25 For the interference to amount to an assault, the plaintiff must
perceive on reasonable grounds that the defendant has the ability to carry the
threat into effect: Zanker v Vartzokis (1988) 34 A Crim R 11; R v Gabriel
(2004) 182 FLR 102.
In Stephens v Myers (1830) 4 Car & P 349; 172 ER 735, the defendant
attended a parish meeting which was chaired by the plaintiff. The meeting
resolved that the defendant should

[page 40]

be ejected from the meeting. The defendant said that he would rather pull the
plaintiff out of the chair than be ejected from the hall and he began to
advance towards the plaintiff with his fists clenched. The church warden
stopped the defendant’s advance when he was not yet close enough to hit the
plaintiff. In instructing the jury, Tindal CJ said:
It is not every threat, when there is no actual personal violence, that constitutes an assault, there
must, in all cases, be the means of carrying the threat into effect: at Car & P 349–50; ER 735.

3.26 If the defendant does not have the actual ability to carry out the
threat, but the plaintiff has in the circumstances a reasonable belief that they
do, this may also be an assault. For example, the pointing of a loaded gun may
be an assault as would pointing an unloaded gun if the defendant is acting as
if it is loaded and the plaintiff is not aware that it is not loaded. In R v St
George (1840) 9 Car & P 483, the opinion was expressed that it was an assault
to present any pistol whether loaded or not, if the person pointed at believed
the weapon was loaded. A similar view was expressed in R v Hamilton (1891)
12 LR (NSW) 111 at 114. In Brady v Schatzel; Ex parte Brady [1911] St R Qd
206, the defendant pretended to load a shotgun in the presence of the plaintiff
and pointed it at them. The court held that this amounted to an assault as the
plaintiff believed on reasonable grounds that the defendant could carry out
the threat.

Apprehension not fear

3.27 The plaintiff’s apprehension of force is assessed according to the
standard of the reasonable person. The term ‘apprehension’ does not refer to
the plaintiff being in fear, but having the belief or expectation that force is
about to be applied to their person: Brady v Schatzel; Ex parte Brady [1911] St
R Qd 206. In ACN 087528774 Pty Ltd (formerly Connex Trains Melbourne Pty
Ltd) v Chetcuti (2008) 21 VR 559 at [16], Hargrave AJA summarised the law
as:
The threat must in fact create in the mind of the plaintiff an apprehension that the threat will be
carried out forthwith (Rixon v Star City Pty Ltd (2001) 53 NSWLR 98). It is not necessary for the
plaintiff to fear the threat, in the sense of being frightened by it. It is enough if the plaintiff
apprehends that the threat will be carried out without his or her consent (Brady v Schatzel; Ex
parte Brady [1911] St R Qd 206 at 208).

The apprehension in the mind of the plaintiff must be objectively reasonable.

3.28 It ought to be sufficient if the threat would have aroused an

expectation of physical interference in the mind of a reasonable person not
afflicted with exaggerated fear, unless the victim’s peculiar sensitivity was
known to the tortfeasor: Bunyan v Jordan (1937) 57 CLR 1; Brady v Schatzel
at 207.

Conditional threat
3.29 If the words of the threat make it clear that the plaintiff is in no
danger of imminent contact, there can be no assault as there can be no
reasonable apprehension of force. For example, in Tuberville v Savage (1669)
1 Mod Rep 3; 86 ER 684, the defendant had his hand on his sword as he told
the plaintiff ‘were it not assize time, I would not take such language from you’
(assize time was the circuit of the criminal court). It was held that these
words, despite the gesture of the hand on the sword, made it clear that the
defendant did

[page 41]

not intend to use the sword upon the plaintiff. A more modern example
would be, ‘if that security guard was not standing right there, I would punch
you’. Although there is the threat to punch, the condition makes it clear that
it will not be carried out.

3.30 However, a conditional threat of the application of force unless

something is done (for example, ‘get off my property or I will shoot you’) may
be an assault if the offered alternative is obedience to an unacceptable
command. In Police v Greaves [1964] NZLR 295, the defendant, threatening a
police constable with a carving knife, informed the constable, ‘You come one
step closer and you will get this straight through your guts’. The court held
that there was an assault as there was a threat of imminent and direct force
unless the constable ceased lawful acts that were within the course of his
duties.

Fault
3.31 Although fault in trespass is intention or carelessness, to be an assault
there must be:
… A subjective intention on the part of the defendant that the threat will create in the mind of
the plaintiff an apprehension that the threat will be carried out forthwith [Rosza v Samuels
[1969] SASR 205 at 207; Rixon v Star City Pty Ltd (2001) 53 NSWLR 98 at [57]–[58]]. It is not
necessary to prove that the defendant in fact intends to carry out the threat [Rixon v Star City]:
ACN 087 528 774 Pty Ltd (formerly Connex Trains Melbourne Pty Ltd) v Chetcuti (2008) 21 VR
559 at [16].

See also Hall v Foneca [1985] WAR 309.

3.32 Therefore, there will be liability for assault even if the defendant
knows that the gun being pointed is unloaded, as it was done with the
intention of causing the apprehension: McClelland v Symons [1951] VLR 157;
MacPherson v Beath (1975) 12 SASR 174 at 177 per Bray CJ. However, to
recklessly cause an apprehension of immediate contact may be sufficient:
Fagan v Metropolitan Commissioner of Police [1969] 1 QB 439 at 444; R v
Bailiff [2002] ACTSC 79 at [21].

Stalking and Domestic Violence

3.33 Some interferences with the person may fall short of assault or battery
and it is necessary to look to criminal law for redress rather than a civil
action. For example, stalking a person does not involve the application of
force nor a threat of imminent harm. Legislation exists making it a criminal
offence to stalk another: see, for example, Crimes Act 1900 (ACT) s 35(1);
Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13(1); Criminal
Code (NT) s 189(2); Criminal Code (Qld) s 359E(1); Criminal Law
Consolidation Act 1935 (SA) s 19AA(2); Criminal Code (Tas) s 192(1);
Crimes Act 1958 (Vic) s 21A(1); Criminal Code (WA) s 338E(1).

3.34 In most jurisdictions it is possible for a victim to be compensated

through the compensation to victims of crime legislation: see Crimes
(Sentencing) Act 2005 (ACT); Victims Rights and Support Act 2013 (NSW);
Sentencing Act 1995 (NT); Victims of Crime Assistance Act 2009 (Qld);
Criminal Law (Sentencing) Act 1988 (SA); Sentencing Act 1997 (Tas);
Sentencing Act 1991 (Vic); Sentencing Act 1995 (WA).

3.35 Specific legislation or provisions in the criminal legislation also exist

in respect of domestic violence, including the threat of domestic violence. The
legislation allows protection orders to be made by the Magistrates Courts or
the equivalent: see Family
 [page 42]

Law Act 1975 (Cth); Domestic Violence and Protection Orders Act 2008
(ACT); Crimes (Domestic and Personal Violence) Act 2007 (NSW);
Domestic and Family Violence Act 2007 (NT); Domestic and Family
Violence Protection Act 2012 (Qld); Intervention Orders (Prevention of
Abuse) Act 2009 (SA); Justices Act 1959 (Tas); Crimes (Family Violence) Act
1987 (Vic); Restraining Orders Act 1997 (WA).

3.36 Also related to the protection of bodily integrity is the invasion of a

person’s privacy. The tort of privacy is still a developing area of law in many
common law countries including Australia. However, the developing tort is
not a trespass action as to establish an action in breach of privacy — the
plaintiff must have suffered loss: see Chapter 7.

4 Queensland Position on Common Law

Assault and Battery
Definition of Assault
3.37 In Queensland, the courts have simply assumed that the Criminal
Code definition of ‘assault’ in s 245 applies to civil actions for trespass to
person: Origliasso v Vitale [1952] St R Qd 211; Grehan v Kann [1948] QWN
40; King v Crowe [1942] St R Qd 288. Therefore, when a civil action is taken
by a plaintiff in Queensland for a battery or an assault, the definition of
assault in s 245 of the Criminal Code (Qld) is used rather than the common
law definitions of those tortious actions.

3.38 Although the criminal definition of assault is applied to civil cases, the
onus of proof remains at the civil standard — on the balance of probabilities:
Grehan v Kann [1948] QWN 40. In many of the earlier civil actions, the
criminal standard of proof of beyond reasonable doubt was erroneously
required in civil actions: King v Crowe [1942] St R Qd 288; Origliasso v Vitale
[1952] St R Qd 211. In 1965, the High Court specifically disapproved the
earlier Queensland decisions requiring the criminal standard in civil actions:
Rejfek v McElroy (1965) 112 CLR 517.

3.39 In practice, the use of the s 245 definition of assault does not change
the law of assault and battery, particularly as in Queensland there are very few
civil actions for trespass to person because magistrates in criminal
proceedings are empowered, upon conviction, to order payment of
compensation to the injured person: see Victims of Crime Assistance Act
2009 (Qld).

3.40 The statutory definition of assault in s 245 of the Criminal Code (Qld)
(the Criminal Code) incorporates both assault and battery at common law.
Section 245 provides:
Definition of assault
(1) A person who strikes, touches, or moves, or otherwise applies force of any kind to, the
person of another, either directly or indirectly without his consent, or with his consent if
the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens
to apply force of any kind to the person of another without his consent, under such
circumstances that the person making the attempt or threat has actually or apparently a
present ability to effect his purpose, is said to assault that other person, and the act is called
an assault.

[page 43]

(2) In this section —

applies force includes the case of applying heat, light, electrical force, gas, odour, or any
other substance or thing whatever if applied in such a degree as to cause injury or personal
discomfort …
Differences Between the Common Law and s 245
Direct and indirect application of force
3.41 One distinction between the common law definitions of assault and
battery and the definition of ‘assault’ in s 245 is that the Criminal Code
definition includes the application of indirect force. Under the common law,
an indirect application of force would not amount to a trespass: see 2.13.

3.42 Lack of consent Section 245 clearly includes the lack of consent of
the plaintiff to the application of force. Therefore, unlike the common law,
there is no debate as to whether the onus is on the plaintiff to prove their lack
of consent when proving the action: see 3.13. The issue of consent was
considered in the case of Horan v Ferguson [1995] 2 Qd R 490. The court held
that consent in s 245 of the Criminal Code included not only express but also
implied consent that arises from the circumstances. McPherson JA stated (at
495):
It is scarcely possible to restrict the word “consent” in s 245 to a consent that is conveyed in
express words. It plainly includes consent that is tacit or implied. Just as the absence of consent
may be inferred from circumstances, so too equally its presence may be inferred.

Defences
3.43 The most important difference is the application of the defences
contained in the Code to civil actions of battery and assault. The Criminal
Code makes certain assaults lawful by providing a defence, and in these cases
a civil action will not be available: Criminal Code Act 1899 (Qld) s 6. The
defences to assault in the Criminal Code correlate with the defences available
under the common law, except in respect of the defence of provocation.

3.44 Section 269 of the Criminal Code provides that ‘[a] person is not
criminally responsible for an assault committed upon a person who gives the
person provocation for the assault’. Provocation is not recognised as a
defence at common law to assault or battery, but evidence of provocation may
prevent an award of, or reduce, the amount of exemplary damages: Fontin v
Katapodis (1962) 108 CLR 177; Farah Constructions Pty Ltd v Say-Dee Pty Ltd
(2007) 230 CLR 89; 236 ALR 209 at [135]; see 6.35. Due to the courts’ use of
the statutory definition of assault, the defence of provocation in s 269 may be
used as a complete defence in a civil action for assault in Queensland.2 As
Macnaughton J expressed it in White v Connolly [1927] St R Qd 75 at 77:
I am of the opinion that the defence of provocation as an excuse for assault may be pleaded in a
civil action for damages for assault as well as in a criminal proceeding for the offence of assault.

[page 44]

The case of Lowry v Barlow [1921] NZLR 316 states the law of New Zealand, which is the same
as the English law. In Queensland, however, the Criminal Code has made a change in our law,
and I refuse to strike out the two paragraphs [pleading provocation].

3.45 Other statutory Code defences in Queensland that may apply are:
self-defence (ss 271 and 272: see 6.32), defence of another (s 273: see 6.33),
defence of moveable property (s 275) and defence of possession of land or
premises: ss 277, 278.

5 False Imprisonment
3.46 In McFadzean v Construction, Forestry, Mining and Energy Union
(2007) 20 VR 250 at [41], the court noted that ‘the essence of the action of
false imprisonment is the compelling of a person to stay at a particular place
against his or her will’. As personal liberty is considered by the law to be one
of the most fundamental common law rights, any restraint placed on personal
liberty that is not warranted by law is false imprisonment: Trobridge v Hardy
(1955) 94 CLR 147. In Ruddock v Taylor (2003) 58 NSWLR 269 at [3],
Spigelman CJ stated:
The protection of personal liberty of individuals has been a fundamental purpose of the
 common law for centuries. The tort of trespass in the form of false imprisonment, has been one
of the ways in which that protection has been provided throughout that period.

3.47 As such, the period of the false imprisonment is not relevant to

establishing the action: Watson v Marshall (1971) 124 CLR 621 at 632. In
Roddan v Corrections Corporation of Australia Pty Ltd [2001] WASC 196 at
[27], it was stated:
Although the period of wrongful detention was short [55 minutes], I am not willing to dismiss
the plaintiff’s action as trivial. Wrongful imprisonment, even for a short period, is a serious
wrong.

3.48 In Herring v Boyle (1834) 1 Cr M & R 377; 149 ER 1126, it was held
that absence of knowledge of restraint prevented the plaintiff succeeding;
however, in Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44, it
was held that knowledge of restraint was not necessary, although this factor
might diminish the damages awarded.
In Murray v Ministry of Defence [1988] 1 WLR 692; 2 All ER 521, the
House of Lords confirmed that knowledge of the restraint is not an essential
element of false imprisonment. In that case, the plaintiff was requested by
soldiers, who arrived at her house at 7.00 am, to get dressed. Other occupants
of the house were assembled in a single room pursuant to directions made
under statute. After the plaintiff dressed, she went downstairs at 7.30 am and
was formally advised, pursuant to the legislation, that she was under arrest.
She was later taken to a screening centre for questioning but released an hour
later. She sued for false imprisonment between 7.00–7.30 am and Lord
Griffiths, delivering the advice of the House of Lords, accepted there could be
imprisonment without knowledge.

3.49 In R v Awang [2004] 2 Qd R 672, a criminal case concerning the

offence of deprivation of liberty, McMurdo P cited Meering v Grahame-White
Aviation Co Ltd and Murray v Ministry of Defence as authorities for the
proposition that knowledge was not necessary. His Honour stated (at [2]):
The offence of deprivation of liberty under s 355 Criminal Code is based on the common law
 crime of false imprisonment. The essence of the offence is the deprivation of liberty of the

[page 45]

complainant. The phrase “or otherwise” in s 355 recognises, as the common law recognised, that
people may be deprived of their liberty not only against their will but also where the deprivation
is achieved by fraud, done without knowledge or the victim lacks capacity. An example would be
to lock a sleeping or intoxicated woman in a room to prevent her from leaving should she try.
Even if she did not know that the offender had locked her in and did not try to leave, she would
have been deprived of her liberty under s 355.

See also Walter v Alltools Ltd (1944) 171 LT 371 (a person’s humiliation is
not lessened by only hearing about imprisonment afterwards from others and
that false imprisonment impacts not only upon a person’s liberty but also on
his or her dignity and reputation).

3.50 To establish the tort of false imprisonment there must be:

a direct interference;
restraint of the plaintiff in all directions; and
the defendant at fault.

Direct Interference
3.51 As a trespass, the interference with the plaintiff’s liberty must be a
direct act of the defendant: Sadler v Madigan [1998] VSCA 53 at [27]–[28]. If
a plaintiff is restrained by the defendant upon the information of another, it
will depend upon the circumstances as to which party directly interfered with
the plaintiff’s liberty. For example, it is sometimes difficult to determine
whether the imprisonment was by police or a person providing police with
information or requesting an arrest.
This issue will be determined upon whether the informant citizen left the
police to exercise some independent discretion to arrest (Dickenson v Waters
Ltd (1931) 31 SR (NSW) 593), that is, whether it was the citizen or the police
who directly imprisoned the plaintiff.
This principle is stated in Cubillo v Commonwealth (2001) 183 ALR 249.
The facts were that the appellant was removed from her family in 1947 at the
age of nine and detained at Retta Dixon Home, which was run by the
Aborigines Island Mission, until 1953. At the time, the Commonwealth had
in place a policy that removed part-Aboriginal children from their homes.
This policy was administered and implemented by the Director of Native
Affairs, the Director having no right to exercise any personal judgment based
on the circumstances. The appellant alleged that she had been falsely
imprisoned by the Commonwealth of Australia as the Commonwealth had
actively promoted or caused her imprisonment. The Federal Court held (at
313):
… to be liable for false imprisonment, it must be the act of the defendant (respondent), or his or
her agent, that imprisons the plaintiff or “the defendant must be active in promoting and
causing the imprisonment”: Myer Stores [Ltd] v Soo [[1991] 2 VR 597] at 629 per McDonald J. A
person who is active in promoting and causing the imprisonment is jointly and severally liable
with the person who effects the imprisonment, ordinarily because their acts are done in
furtherance of a common design: Myer Stores [Ltd] v Soo at 617 per O’Bryan J.

On the evidence available to the court, the appellant failed to establish that
the Commonwealth had actively promoted or caused the imprisonment.
The person responsible indirectly, that is, the person who actively
promotes and causes the false imprisonment, may be liable for malicious
prosecution, an action on the case: see 7.8.

[page 46]

Restraint in All Directions

3.52 Although the trespass refers to imprisonment, it not necessary that
there be an actual imprisonment of the plaintiff. In McFadzean v
Construction, Forestry, Mining and Energy Union [2004] VSC 289 at [88], it
was noted that ‘whilst restraint must be total and whilst false imprisonment
involves restrain[t] at or in some identifiable place, the concept of
incarceration has developed an expanded meaning’.

3.53 What is important is that the deprivation must consist of a

comprehensive limitation of freedom in all directions. A mere obstruction of
movement in one direction only is not sufficient: Bird v Jones (1845) 7 QB
742; 115 ER 642; Kuchenmeister v Home Office [1958] 1 QB 496. In Bird v
Jones, part of a public road was enclosed to permit spectators to pay a fee for
seating to view a boat race. The plaintiff, who wished to walk along that
portion of the road, was refused access and two police officers prevented him
from passing in that one direction. He could stay where he was or go in any
other direction, including along the other side of the road. Since escape was
open to him in all directions except the particular route blocked off by the
seating enclosure, there was no imprisonment. Patterson J stated:
[I] cannot bring my mind to the conclusion that, if one man merely obstructs the passage of
another in a particular direction … leaving him at liberty to stay where he is or to go in any
other direction if he pleases, he can be said thereby to imprison him … [I]mprisonment is, as I
apprehend, a total restraint of the liberty of the person, for however short a time, and not a
partial obstruction of his will, whatever inconvenience it may bring on him: at QB 751–2; ER
672.

See also Myer Stores Ltd v Soo [1991] 2 VR 597, where the respondent was
escorted through a department store to a security room for questioning. The
court held that it was false imprisonment from the time the respondent was
approached in the store. It was noted (at 614): ‘The respondent was not
invited to proceed at his own pace and by his own route to the security room;
it was intended that he should proceed there under escort’.

No reasonable means of escape

3.54 For there to be total restraint in all directions, there must be no
reasonable means of escape: R v Macquarie (1875) 13 SCR (NSW) 264;
Burton v Davies [1953] St R Qd 26. R v Macquarie involved the plaintiff being
cast adrift in a boat; Burton v Davies involved a car being driven at speed. In
each case it was held that there was no reasonable means of escape. In Burton
v Davies, Townley J stated (at 30):
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.

In McFadzean v Construction, Forestry, Mining and Energy Union (2007)

20 VR 250, logging contractors blockaded demonstrators camping in the area
by setting up an official picket line. It was possible for the demonstrators to
get out of their camp by walking through the bush. The respondent also
offered to guide the demonstrators from the camp site if they agreed not to
engage in further protest against the logging. In determining whether egress
through the bush was a reasonable means of escape, the Court of Appeal
stated that there were four factors to take into account: ‘threat or danger to
the self; threat or danger

[page 47]

to property (including property of others); distance and time; and legality’: at

[55]. The trial judge had considered the physical ability of the appellants, their
clothing and footwear and the terrain in terms of condition and distance, and
came to the conclusion that egress through the bush was a reasonable means
of escape. The Court of Appeal agreed: at [81].

3.55 If the means of escape is not apparent and is not known to the
plaintiff, there is no reasonable means of escape.

Physical restraint not necessary

3.56 The Appeal Court in McFadzean v Construction, Forestry, Mining and
Energy Union (2007) 20 VR 250 at [23] approved the trial judge’s observation
that:
… restraint must be total, although it need not imply the use of physical force — it is sufficient if
there be submission to the control of another after being given to understand that without
submission there will be compulsion.

In Ferguson v State of Queensland [2007] QSC 322 at [13], it was explained

that ‘it is necessary to show that the plaintiff has submitted to the defendant’s
power. It is not necessary however for the defendant to have used force and
acts or words are sufficient where a plaintiff believes that force would be used
if he does not submit’. Therefore, submission may come from a threat of
violence or a belief on the part of the plaintiff that the defendant has the legal
authority to restrain their movement.

3.57 Threat Commission of the tort of false imprisonment often, although

not necessarily, involves an assault, that is, the submission to the control of
the other is procured by threats of force. Therefore, restraint may arise from
mere words if those words amount to an assault, that is, a threat of imminent
harm. The threat may be against the plaintiff, against a person known to the
plaintiff or valuable property: McFadzean v Construction, Forestry, Mining
and Energy Union (2007) 20 VR 250 at [23] (approving [2004] VSC 289 at
[90]). In R v Garrett (1988) 50 SASR 392, threats were made against the
plaintiff and another by holding a knife their throat. The court held (at 402):
Restraint of liberty is put upon a person not only by actual physical restraint, but also by threats
to that person or threats to another.

3.58 Assertion of authority Restraint may be procured by assertion of

legal authority: Symes v Mahon [1922] SASR 447; Watson v Marshall (1971)
124 CLR 621. In Symes v Mahon, the plaintiff was falsely identified as a
wanted person and was requested by a uniformed officer to accompany him
on public transport to a police station. The circumstances were sufficient to
justify false imprisonment simply by assertion of authority even though no
actual restraint was used — the plaintiff believed that he had to comply with
the officer’s request. Murray CJ stated (at 453):
In a case of this description, where there has been no application of physical force to the person
alleging imprisonment, there must be evidence of complete submission by him to the control of
the other party … reasonably thinking that he had no way of escape which could reasonably be
taken by him.

See also Bulsey v Queensland [2015] QCA 187 (plaintiff was falsely
imprisoned as she followed police commands to show them around the house
and sit on a couch and not move).

[page 48]

3.59 Provided the plaintiff believes, and was induced by the defendant to
believe, that an attempt to escape would be restrained, it will amount to
imprisonment: Watson v Marshall (1971) 124 CLR 621 at 640. In Myer Stores
Ltd v Soo [1991] 2 VR 597, it was held that there was false imprisonment of
the plaintiff while held in an interview room even though the door to the
room was open and the plaintiff had not been physically restrained. As the
plaintiff believed he had no choice but to remain in the room, there was total
restraint by the assertion of authority. However, in Whittaker v Child Support
Registrar (2010) 264 ALR 473, it was held that there was no false
imprisonment when the plaintiff, who was subject to a departure prohibition
order of the Family Court, was detained in the departure hall at Sydney’s
international airport by customs officers. The Federal Court held that the
plaintiff was able to move freely within the departure lounge, but could not
pass through passport control. The court held that it was the plaintiff’s desire
to pass through passport control to board the plane which prevented him
from leaving, not necessarily the belief he could not leave: at [185].
See also Darcy (bht Aldridge) v New South Wales [2011] NSWCA 413,
where the court held that the appellant had been detained even though she
was able to leave the residential centre which accommodated and treated
persons with intellectual or developmental disabilities. As she could not leave
without permission and was obliged to return at the end of her sojourn,
Whealy JA stated (at [154]):
Although the “total restraint” imposed on Ms Darcy by her continued detention at [the
residential centre] bears no similarity to what might conventionally be described as
“imprisonment”, it was detention, in my opinion, nevertheless.

Fault
3.60 Due to the nature of the trespass, restraint of the plaintiff, generally
the imprisonment must be intentional. However, as in Australia fault in
trespass may be intentional or a lack of care (see 2.15) an action may succeed
if the imprisonment was due to the defendant’s negligence. There is some
disagreement as to whether negligence is sufficient, but to allow negligence as
evidence of fault would be in accordance with the function of the tort —
protection of a person’s fundamental right to liberty.3

Lawful Justification
3.61 In Darcy (bht Aldridge) v New South Wales [2011] NSWCA 413 at [2],
it was stated:
The question of lawful justification for the detention of a person is a question of the utmost
importance. It involves the recognition of the importance of the liberty of the subject, an aspect
of society and human rights recognised, indeed cherished, by the common law.

Upon a plaintiff establishing imprisonment, the defendant then bears the

onus of proving lawful justification or excuse to avoid liability. In Ruddock v
Taylor (2005) 222 CLR 612; 221 ALR 32 at [140], Kirby J stated:
Wrongful imprisonment is a tort of strict liability. Lack of fault, in the sense of absence of bad
faith, is irrelevant to the existence of the wrong. This is because the focus of this civil

[page 49]
 wrong is on the vindication of liberty and reparation to the victim, rather than upon the
presence or absence of moral wrongdoing on the part of the defendant. A plaintiff who proves
that his or her imprisonment was caused by the defendant therefore has a prima facie case. At
common law it is the defendant who must then show lawful justification for his or her actions.
[footnotes omitted].

See also Ferguson v State of Queensland [2007] QSC 322 at [14].

3.62 The fact that a body has authority to detain persons does not
necessarily mean that there can be no claim in false imprisonment.
Furthermore, merely because a person enters a place voluntarily does not
prevent a claim in false imprisonment if restrained from leaving without
lawful excuse or authority: Vignoli v Sydney Harbour Casino (2000) Aust
Torts Reports ¶81-541.

Right to release governed by contract

3.63 If one person induces another to put himself or herself in a place
which it is impossible to leave without assistance, a refusal to give assistance
when expectation has been given that it would be forthcoming, will constitute
false imprisonment. However, if the person enters a place voluntarily, but the
right to release is governed by some licence or contract, there is consent to the
restriction: Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379. A
refusal to release at a time or in a manner other than that reasonably agreed to
may not be actionable. In Herd v Weardale Steel Coke and Coal Co Ltd [1915]
AC 67, an underground miner agreed to spend specified shifts down a mine,
and refusal to take him to the surface until the end of the shift did not amount
to false imprisonment.
Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379 concerned a
potential traveller on a ferry who agreed to pay a charge to leave a wharf.
Having missed his ferry, he attempted to leave without paying the fee and was
restrained. On appeal from the High Court, the Privy Council in Robinson v
Balmain New Ferry Co Ltd [1910] AC 295 at 299 suggested that the defendant
could impose any reasonable condition before allowing exit, whether there
was a contract or not. However, this goes beyond the High Court’s statement
of principle in the same case. In the later decision of Herd v Weardale Steel
Coke and Coal Co Ltd [1915] AC 67 at 71–2, the Lord Chancellor suggested
the High Court and Privy Council views in Balmain were the same.

Power of arrest
3.64 Arbitrary arrest has been described as the ‘hallmark of tyranny’:
Donaldson v Broomby (1982) 40 ALR 525 at 525–6 per Deane J. See also Re
Bolton; Ex parte Beane (1987) 162 CLR 514 at 235–6 per Deane J; Ruddock v
Taylor (2005) 222 CLR 612; 221 ALR 32 at [120] per McHugh J; [138] per
Kirby J.
Many claims for false imprisonment arise from the allegedly wrongful
arrest or detention of the plaintiff. If the arrest is lawful, generally there is no
false imprisonment. Private citizens have a power to arrest under the
common law for breaches of the peace and police have powers of arrest under
the common law and statute.

[page 50]

3.65 Police arrest Under the common law, an officer may make an arrest
without a warrant if there are reasonable grounds to believe that the plaintiff
has committed a felony. The common law powers of arrest without a warrant
depend upon the circumstances of each case, including the nature of the
crime: John Lewis Co Ltd v Tims [1952] AC 676.
However, there may be false imprisonment if the police officer who has
made a lawful arrest then delays in charging the plaintiff beyond a reasonable
time: Jones v Harvey (1983) 1 MVR 111. In Slaveski v Victoria [2010] VSC
441, the plaintiff sued in respect of numerous alleged interferences, including
false imprisonment resulting from the police arresting the plaintiff without a
warrant and failing to take him before a bail justice within a reasonable time.
The plaintiff was arrested just before midday and interviewed for less than 90
minutes. The plaintiff then required hospitalisation after taking tablets and
was discharged from hospital at 9.05 pm. He was then taken to the police
station where he was charged. A bail justice was found and the plaintiff was
released on bail at 11.30 pm. The court held that there was no unreasonable
delay as although the plaintiff was in custody for just less than 12 hours, a
significant period of that time was spent in hospital due to his own actions.

3.66 Many circumstances for arrest without a warrant are governed by

statute that vary within each jurisdiction but, usually, there is a requirement
of a reasonable belief by the police office that a felony has been committed or
about to be committed. If there is no such reasonable belief, there is no lawful
arrest and a plaintiff may allege false imprisonment.
See Crimes Act 1914 (Cth) s 3W; Crimes Act 1900 (ACT) s 212; Law
Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 99; Police
Administration Act 1978 (NT) s 123; Police Powers and Responsibilities Act
2000 (Qld) s 365; Summary Offences Act 1953 (SA) ss 75, 78; Police Offences
Act 1935 (Tas) s 55; Crimes Act 1958 (Vic) s 458; Criminal Investigation Act
2006 (WA) s 128.

3.67 Many sections of the Criminal Codes dealing with particular offences
provide that an offender cannot be arrested without a warrant. Where a
warrant is necessary, an officer making an arrest must have the warrant in his
or her possession and produce it if required: Little v Commonwealth (1947) 75
CLR 94.
However, the fact that a warrant exists and is valid does not negate the
possibility of false imprisonment: Myer Stores Ltd v Soo [1991] 2 VR 597.
Failure to act in conformity with a warrant may render a police officer liable:
Symes v Mahon [1922] SASR 447.

3.68 Likewise, an arrest based on a warrant issued without statutory

authority may lead to a claim in false imprisonment. For example, in Spautz v
Butterworth (1996) 41 NSWLR 1, the plaintiff was falsely imprisoned for 56
days after the defendant magistrate had issued an arrest warrant for non-
payment of a costs order awarded against the plaintiff in a civil action. There
was no statutory authority for the issuing of the warrant. In the
circumstances, where the plaintiff had no criminal record and was
unceremoniously cast into prison, the court awarded compensatory damages
of $75,000.

3.69 Civil arrest It is lawful under the common law for a person to make a
civil arrest to prevent breaches of the peace: Coupey v Henley, Whale and
Webster (1797) 170 ER 448; 2 Esp 540. Where a person exercises the civil
power of arrest, there is a duty to take the arrested person before a justice or
to a police station as soon as reasonably possible so the

[page 51]

person may be charged: R v Brown (1841) C & M 314; 174 ER 522; Gerard v
Hope [1965] Tas SR 15; Goss v Nicholas [1960] Tas SR 133.

3.70 The onus is upon the arresting citizen to prove that an offence had
been committed or that there was reasonable ground for the apprehension of
a crime: Allen v Wright (1838) 8 C & P 522; 173 ER 602; Handcock v Baker
(1800) 2 Bos & P 260; 126 ER 1270.
Various statutes have modified the position at common law. At the most
basic level, statutes in most jurisdictions render it legal to detain a person for:
‘breaching the peace’; or
if they are committing an offence; or
it is believed on reasonable grounds that they have committed an
offence.
See Crimes Act 1914 (Cth) s 3Z; Crimes Act 1900 (ACT) s 218; Law
Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 100; Criminal
Code Act 1983 (NT) s 441; Criminal Code 1899 (Qld) ss 260 and 546;
Criminal Law Consolidation Act 1935 (SA) s 271; Criminal Code 1924 (Tas) s
27; Crimes Act 1958 (Vic) s 458; Criminal Investigation Act 2006 (WA) s 25.

Prison authorities
3.71 False imprisonment may arise if prison authorities miscalculate
remissions and restrain a dischargeable prisoner for longer than necessary:
Cowell v Corrective Services Commission of New South Wales (1988) 13
NSWLR 714. See also R v Governor of Brockhill Prison; Ex parte Evans (No 2)
[2001] 2 AC 19.

3.72 As for discipline in the defence forces, if the detention of the member
of the defence force is lawful on its face, there is no action in false
imprisonment. In Haskins v Commonwealth (2011) 244 CLR 22; 279 ALR
434, the plaintiff sued in false imprisonment after being imprisoned as
sentenced by the Australian Military Court. To succeed, the plaintiff had to
establish that the officer in charge of the Australian Defence Force’s
corrective establishment was liable in false imprisonment. The High Court
held that there was no false imprisonment and noted (at [67]):
To permit the plaintiff to maintain an action against those who executed that punishment
(whether service police or the officer in charge of the corrective establishment) would be
destructive of discipline. Obedience to lawful command is at the heart of a disciplined and
effective defence force. To allow an action for false imprisonment to be brought by one member
of the services against another where that other was acting in obedience to orders of superior
officers implementing disciplinary decisions that, on their face, were lawful orders would be
deeply disruptive of what is a necessary and defining characteristic of the defence force. It would
be destructive of discipline because to hold that an action lies would necessarily entail that a
subordinate to whom an apparently lawful order was directed must either question and disobey
the order, or take the risk of incurring a personal liability in tort.

Statutory authority
3.73 Many statutes permit government authorities and persons other than
police officers to detain people, for example, customs officers (Customs Act
1901 (Cth)) and immigration

[page 52]

officials (Migration Act 1958 (Cth)) and members of a civil aviation crew:
Civil Aviation Regulations 1988 (Cth). Legislation may also give power to
police officers to detain people, outside of criminal law. See, for example,
Mental Health Act 2007 (NSW) s 22 (police may apprehend person who
appears to be mentally ill or mentally disturbed if they believe on reasonable
grounds that the person would attempt suicide or cause serious harm).

3.74 In Ruddock v Taylor (2005) 222 CLR 612; 221 ALR 32, the
Commonwealth of Australia detained the respondent for two lengthy periods
under the Migration Act 1958 (Cth). The High Court in other proceedings
decided that the Commonwealth was not entitled to detain the respondent
and the respondent sued the Ministers of the Federal Government
responsible for the detention. The New South Wales Court of Appeal had
held that the position of the appellants was analogous to that of a prison
authority that keeps prisoners in custody longer than permitted by statute.
There is no defence of good faith to false imprisonment. The court noted that
the executive arm of the government is not to be treated differently and,
therefore, it had to be established that its officers had lawful authority to
detain: (2003) 58 NSWLR 269 at [3]. As a trespass action, false imprisonment
requires a wilful or negligent act, that being, for this particular trespass, the
intention to detain. By cancelling the respondent’s visa, the inevitable
consequence was detention. On appeal, the High Court held by a majority of
5:2 that s 189 of the Migration Act 1958 (Cth) allowed persons to be detained
if an officer ‘knows or reasonably suspects that a person … is an unlawful
non-citizen’ and that as long as the officer had the requisite state of mind
when detaining the respondent, the detention was lawful. This was applicable
even if the respondent was, in fact, not an unlawful non-citizen: at [28].

6 Remedies
3.75 In Plenty v Dillon (1991) 171 CLR 635 at 654; 98 ALR 353 at 366, it
was explained, ‘once a plaintiff obtains a verdict in an action of trespass, he or
she is entitled to an award of damages’. This is because the trespass to person
actions are actionable without proof of damage: see 2.19. However, the type
of damages awarded will depend upon whether the plaintiff suffered any loss
and the circumstances surrounding the trespass. The types of damages
available are nominal, compensatory, aggravated and exemplary: see Cassell
& Co Ltd v Broome [1972] AC 1027 at 1124–1126.

Nominal Damages
3.76 A plaintiff who successfully establishes an action in trespass to the
person but has suffered no loss or harm from the trespass is entitled to
nominal damages. The nominal damages, which are merely a token amount,
are awarded in recognition that the plaintiff’s rights have been interfered
with. See generally Law v Wright [1935] SASR 20; Stephens v Myers (1830) 4
Car & P 349; 172 ER 735.

Compensatory Damages
3.77 If the trespass has caused the plaintiff to suffer loss or harm, the
remedy is compensatory damages. The aim of such damages is to place the
plaintiff in the position as if no tort had been committed against them.

[page 53]
 A plaintiff who has suffered injury would be entitled to compensatory
damages for:
bodily injury, pain and suffering;
consequential loss of earning capacity; and
expenses incurred, for example hospital and medical costs, provided
these were reasonable and the actual consequences of the trespass to
the person.

3.78 With the introduction of the civil liability legislation in all Australian
jurisdictions that imposes restrictions upon the assessment of damages for
personal injury (see Chapter 15), there is the issue of whether claims for
personal injury in trespass actions fall within the ambit of the legislation. For
example, in Queensland, it appears as if intentional torts such as trespass to
person do fall within the ambit of the Civil Liability Act 2003 (Qld) due to the
application section (‘Act applies to any civil claim for damages for harm’: s 4)
and the definitions of ‘claim’ and ‘harm’: see Sch 2 Dictionary. Academic
writing has pointed out that this interpretation does not equate with the
intention of the Ipp Report4 that clearly refers to the law governing the
assessment of damages for personal injury in negligence: Ipp Report at
[1.10].5
In contrast, the Civil Liability Act 2003 (NSW) does not apply to
intentional torts as intentional acts done with the intent to cause injury or
death are excluded: s 3B(1)(a). See Cross v Certain Lloyds Underwriters [2011]
NSWCA 136. Similar provisions are also found in the civil liability legislation
of Tasmania, Victoria and Western Australia: Civil Liability Act 2002 (Tas) s
3B(1)(a); Wrongs Act 1958 (Vic) s 28C(2)(a); Civil Liability Act 2002 (WA) s
3B(1).
In South Australia, the assessment of damages for personal injury refers to
negligence and unintentional torts: Civil Liability Act 1936 (SA) s 51(a)(ii).

Aggravated and Exemplary Damages

3.79 Awards of damages for trespass to person may also include exemplary
damages and aggravated damages: Henry v Thompson [1989] 2 Qd R 412.
Such damages may be awarded in addition to nominal damages if there is no
loss and in addition to compensatory damages if the plaintiff suffered loss
from the trespass. The difference between the two types of damages was
explained in New South Wales v Ibbett (2005) 65 NSWLR 168 at [83] as ‘in
the case of aggravated damages the assessment is made from the point of view
of the Plaintiff and in the case of exemplary damages the focus is on the
conduct of the Defendant’.

Aggravated damages
3.80 Aggravated damages are awarded to compensate the plaintiff for
injury to their feelings. In Watts v Leach [1973] Tas SR 16 at 19–20, Nettlefold
J described the function of an award of aggravated damages in an action in
battery as follows:
The damage was caused by an intentional act of violence. That being so, in considering the
appropriate lump sum for damages, the court must take into account that the plaintiff’s

[page 54]

compensation must reflect any injury to the plaintiff’s feelings, ie, the indignity, mental
suffering, disgrace and humiliation which may have been caused to him.

3.81 The fact that the plaintiff suffers a particular vulnerability and this
leads to them suffering distress that would not otherwise be suffered, does not
prevent an award of aggravated damages. In Trevitt v NSW TAFE
Commission [2001] NSWCA 363, the appellant claimed in assault and false
imprisonment. He was used in a mock hold-up organised by the lecturer in a
classroom, not knowing that it was a role play and that the perpetrator was in
fact another student and the pistol being used was not real. Damages were
awarded upon appeal for the appellant’s injured feelings, distress and affront
to dignity. The Court of Appeal stated (at [49]):
The distress suffered by the appellant was in my opinion due to his having a vulnerable
personality, and would probably not have otherwise been suffered; but this does not in my
opinion prevent damages being awarded for that distress for the tort of trespass to the person.
Liability for trespass to the person does not require proof of foreseeability of damages, and in
my opinion once liability for that tort is established the wrongdoer must take the victim as he
finds him.

3.82 Damages for false imprisonment are awarded for the loss of liberty
and the injury to feelings such as the indignity, disgrace and humiliation. In
Myer Stores Ltd v Soo [1991] 2 VR 597, aggravated damages were awarded for
false imprisonment to compensate the plaintiff for the distress that he had
suffered as a result of the defendant’s conduct during shoplifting
investigations which had no foundation. See also Eaves v Donelly [2011] QDC
207 where the plaintiff was awarded aggravated damages for embarrassment
when she was walked in handcuffs past people whom she knew in her
building and for her feelings of degradation, anxiety and sickness during her
false imprisonment.

Exemplary damages
3.83 Exemplary damages are awarded to punish the defendant if the court
finds that the defendant acted with contemptuous disregard for the plaintiff’s
rights: New South Wales v Ibbett (2006) 229 CLR 638; 231 ALR 485 at [51]. In
Coleman v Watson [2007] QSC 343, the court refused to award exemplary
damages in an action for assault and false imprisonment against two police
officers, finding that the defendants had acted in good faith although the
plaintiff’s arrest had been unlawful. In Trevitt v NSW TAFE Commission
[2001] NSWCA 363, no exemplary damages were awarded as the wrongful
conduct was not contumelious; it simply ‘flowed from a misguided view as to
what would be helpful to the students being instructed’: at [52].

3.84 All forms of damages may be awarded: Carter v Walker (2010) Aust
Torts Reports ¶82-076. In New South Wales v Radford [2010] NSWCA 276 at
[97], Leeming JA explained that:
the various categories of damages that may be awarded for trespass to the person, including
assault and false imprisonment, are not self-contained. There is a close relationship between an
award of ordinary compensatory damages for injury to the plaintiff’s feelings and an award of
aggravated damages. It is necessary to assess compensatory damages, including aggravated
damages, before determining whether exemplary damages should be awarded and, if so, the
quantum of any such award.

[page 55]

For example, in Henry v Thompson [1989] 2 Qd R 412, the three

defendants were police officers who assaulted the plaintiff during an episode
in which one of the defendants had jumped up and down on the head and
shoulders of the plaintiff and another had urinated on him. Damages were
upheld on appeal at $5000 for actual injury, $10,000 for aggravated damages
for the humiliation the plaintiff experienced, and $10,000 exemplary damages
intended to punish the defendants. See also Eaves v Donelly [2011] QDC 207
(exemplary damages awarded as the defendant’s dislike of the plaintiff
influenced the defendant to wrongly use his power of arrest and hand
cuffing).

Injunction and Other Orders

3.85 Although it has been the general view that courts have no power to
grant an injunction to restrain one person from annoying or interfering with
another outside the matrimonial jurisdiction (Fitzwilliam v Beckman [1978]
Qd R 398), some courts have been prepared to grant an injunction to restrain
a threatened assault: Zimitat v Douglas [1979] Qd R 454; Parry v Crooks
(1981) 6 Fam LR 824; Corvisy v Corvisy [1982] 2 NSWLR 557.

3.86 Legislation has been enacted in all Australian jurisdictions that allows
a court to grant protection orders that may include protection for not only
spouses (including de facto spouses) and children of the relationship, but also
relatives and associates: see 3.35.

3.87 A person who has been trespassed against may, of course, complain to
police and seek redress under the criminal law. As noted at 3.34, the courts
have the power to order victims of crime to be compensated.

7 Limitation Period
3.88 The limitation period is dependent upon the type of loss the plaintiff
has suffered, if any. If the plaintiff is seeking a remedy but the trespass has not
led to loss, the action must be brought within six years, except in the
Northern Territory: Limitation Act 1985 (ACT) s 11(1); Limitation Act 1969
(NSW) s 14(1)(b); Limitation Act 1981 (NT) (three years) s 12(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). The same
limitation applies if the plaintiff is seeking compensation for loss other than
personal injury, for example, property or economic loss.
If the claim is for personal injury, the relevant limitation period is three
years: Limitation Act 1985 (ACT) s 16B; Limitation Act 1969 (NSW) s 18A;
Limitation Act 1981 (NT) s 12(1)(b); Limitation of Actions Act 1974 (Qld) s
11; Limitation of Actions Act 1936 (SA) s 36; Limitation Act 1974 (Tas) s 5;
Limitation of Actions Act 1958 (Vic) s 27D; Limitation Act 2005 (WA) s
14(1). See also Chapter 14.

[page 56]
 Further Reading
R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis
Butterworths, Sydney, 2013, Ch 3.
J Devereux, ‘Known Knowns and Known Unknowns: The Mysteries of
Intentional Torts Against the Person’ (2014) 22 Tort L Rev 134.
P Handford, ‘Tort Liability for Threatening or Insulting Words’ (1976)
54 Can Bar Rev 563.
H Luntz, D Hambly, K Burns, J Dietrich and N Foster, Torts: Cases and
Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2012, Ch 11.
F A Trindade, ‘The Modern Tort of False Imprisonment’ in N J
Mullany (ed), Torts in the Nineties, LBC Information Services, Sydney,
1997.
Hon P W Young, ‘Is There Any Law of Consent With Respect to
Assault?’ (2011) 85 ALJ 23.

1. P Handford, ‘Tort Liability for Threatening or Insulting Words’ (1976) 54 Can Bar Rev 563.
2. For criticism of this approach, see R S O’Regan, ‘Provocation as a Defence in Queensland in a
Civil Action for Assault’ (1990) 16 UQLJ 117.
3. See R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis Butterworths, 2013, [3.25].
4. Commonwealth of Australia, Review of the Law of Negligence — Final Report, October 2002,
available at <http://revofneg.treasury.gov.au>.
5. See T Cockburn and B Madden, ‘A Renewed Interest in Intentional Torts Following Legislative
Changes to the Law of Negligence?’ (2006) 14 Tort L Rev 161.
[page 57]
 Chapter 4

Trespass to Land

1 Introduction
4.1 Trespass to land is one of the oldest forms of action known to the
common law, reflecting the early significance placed upon real property and
title to it. The action consists of any direct and unauthorised interference,
either intentional or negligent, with a person’s possession of land. It was
termed originally quare clausum fregit (meaning ‘wherefore he broke the
close’). ‘Close’ was the term used to describe a person’s [en]closed land.

4.2 As a trespass action, the plaintiff does not have to prove that any
damage was suffered; the mere interference with the plaintiff’s right of
possession is sufficient to establish liability: Entick v Carrington (1765) 19 St
Tr 1029; 95 ER 807. The well-known words of Lord Camden LCJ in Entick v
Carrington summarise the position:
By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No
man can set his foot upon my ground without my licence, but he is liable to an action, though
the damage be nothing … If he admits the fact, he is bound to shew by way of justification, that
some positive law has empowered or excused him: at St Tr 1066; ER 818.

Those words were cited with approval by Brennan J of the High Court in
Halliday v Nevill (1984) 155 CLR 1 at 10; 57 ALR 331 at 335.
However, in a modern society, other competing policy factors have to be
balanced against privileges associated with title to land and no longer is ‘every
invasion of private property, be it ever so minute’ an actionable trespass.
4.3 To succeed in trespass to land, the following elements must be
established:
the plaintiff must have the requisite title to sue;
there must be an actionable interference with land; and
the defendant must be at fault.

2 Title to Sue
4.4 The law of trespass to land is principally concerned with protecting
possession of land. For this reason, it is the possessor and not necessarily the
owner who is entitled to sue.
As to what is possession, it is a question of fact. In Newington v Windeyer
(1985) 3 NSWLR 555, the plaintiffs owned houses that faced onto an open
space of land called the Grove. There was no registered owner of the Grove
itself, but the plaintiffs had used the

[page 58]

area for many years as their garden. The defendant owned two houses that
backed onto the Grove. She took down the fence separating her houses from
the Grove, and put up a low brick wall with gates giving access onto the
Grove. The plaintiffs alleged that any entry by the defendant or her guests
onto the Grove constituted trespass. The Court of Appeal of New South
Wales held that entry by the defendant onto the Grove did constitute trespass,
even though there was no registered owner of the land. McHugh JA (with
whom Hope JA agreed) said (at 563–4):
The [plaintiffs] are not the owners of the registered title of the Grove, but that fact does not
prevent them maintaining an action of trespass against the [defendant]. The modern law of real
property continues to invoke the medieval doctrine that possession is prima facie evidence of
seisin in fee and that an estate gained by wrong is nevertheless an estate in fee simple. The
 evidence proved that the [plaintiffs] had engaged in many acts of ownership over a period of
nearly fifty years. They employed a man to mow the lawn. They engaged in the maintenance of
the trees, garden and rockeries. They cut down trees when necessary. They used the Grove as a
common garden … They blocked off attempts by … the [defendant] to use the Grove. On many
occasions [they] told uninvited visitors that the Grove was private land and that they were
trespassing. In my opinion, [the trial judge] was correct in finding that the [plaintiffs] were in
possession of the Grove.

4.5 The possession of the plaintiff need not be lawful and a plaintiff in
actual possession has title to sue except if another can establish a better right
to possession: Newington v Windeyer (1985) 3 NSWLR 555 at 563. This
emphasis on possession as the basis to sue may generate some
inconsistencies; for example, a possessor, even a wrongful possessor such as a
squatter, may be able to bring an action against anyone who is unable to
establish a better legal right to possession, that is, a squatter with earlier
possession could sue another subsequent interloper. However, the squatter
could not maintain the action against the true owner or someone acting on
the authority of the true owner: NRMA Insurance Ltd v B & B Shipping and
Marine Salvage Co Ltd (1947) 47 SR (NSW) 273 (defence of jus terii); for
defences to trespass, see Chapter 6. In Delaney v T P Smith Ltd [1946] KB
393, the plaintiff took possession of a house under a lease that was legally
ineffective and, therefore, did not give any right to exclusive possession. The
defendants were the owners of the house and reclaimed possession of the
house by forcibly ejecting the plaintiff. The plaintiff alleged trespass to land.
The Court of Appeal held that the plaintiff’s action failed because the
defendants’ legal right to exclusive possession overrode the plaintiff’s actual
possession. Tucker LJ, with whom Cohen LJ agreed, said (at 397):
It is no doubt true that a plaintiff in an action in trespass to land need only in the first instance
allege possession. This is sufficient to support his action against a wrongdoer, but is not
sufficient as against the lawful owner …

Tenants and Lessors

4.6 As possession of the land gives standing to sue, it would be a tenant of
the demised premises that is interfered with who would have title to sue in
trespass, not the lessor (the owner): Loxton v Waterhouse (1891) 7 WN
(NSW) 98; Rodrigues v Ufton (1894) 20 VLR 539. In fact, a tenant lawfully in
possession may sue a trespassing lessor: Kelsen

[page 59]

v Imperial Tobacco Co (of Great Britain and Ireland) Ltd [1957] 2 QB 334.
However, legislation or the lease may provide the lessor with certain rights of
entry onto demised premises. For example, Pt 3 of the Residential Tenancies
Act 1994 (Qld) states for what purposes a lessor may enter the demised
premises and the required notice.
Where a lease is broken by a tenant, giving a lessor the right to immediate
possession, reentry by the lessor while the tenant is not in possession will
deprive the tenant of any right to sue: Baker’s Creek Consolidated Gold
Mining Co v Hack (1894) 15 LR (NSW) Eq 207. If the tenant is still in
possession, there are cases to the contrary: Gifford v Dent (1926) 25 WN 33.
The tenant may sue in trespass even if the alleged interference has been
authorised by the lessor: Kelsen v Imperial Tobacco Co (of Great Britain and
Ireland) Ltd.

Trespass by relation
4.7 The doctrine of trespass by relation is a legal fiction and applies where
a plaintiff with a right of possession enters land subsequent to the right
having accrued. Where a person has a right to immediate possession of land,
by exercising the right in entering upon the land, the person is deemed to
have been in possession from the time the right accrued: Ocean Accident Co v
Ilford Gas Co [1905] 2 KB 493; Ebbels v Rewell [1908] VLR 261; Minister of
State for the Interior v RT Co Pty Ltd (1962) 107 CLR 1 at 5. This means that
their possession is ‘related back’ to the time when the right of entry arose to
permit an action for any interference which occurred between accrual and
actual entry. Under this doctrine, a tenant who enters into a lease giving the
right to exclusive possession from the date of execution of the lease, can sue a
trespasser for any interference between the date of execution and the time of
actual entry. Similarly, a landlord seeking mesne profits for trespass (see 4.69)
from a tenant after ejecting them, would rely upon the legal fiction of trespass
by relation: see Hampton v BHP Billiton Minerals Pty Ltd (No 2) [2012]
WASC 285 at [300]–[308].

4.8 In many jurisdictions, where the doctrine of interesse termini (interest

that a lessee had under the common law before taking possession of the leased
premises) has been abolished, a lease takes effect from the date fixed for
commencement, so trespass by relation is of less importance: see
Conveyancing Act 1919 (NSW) s 120A(1); Law of Property Act 2000 (NT) s
115(1); Property Law Act 1974 (Qld) s 102(1); Law of Property Act 1936 (SA)
s 24B; Property Law Act 1958 (Vic) s 149(1); Property Law Act 1969 (WA) s
74(1).

Licensees
4.9 A licensee is a person given permission to enter or to remain on land,
usually for a particular purpose, but without any entitlement to an interest in
exclusive possession of land. As such a person does not have an exclusive
right to possession, so they do not have the requisite title to sue in trespass. In
Western Australia v Ward (2002) 213 CLR 1 at [504], McHugh J stated:
In contrast (to a lease), a licence to use land ordinarily confers only a personal right that is
enforceable in contract but not by an action in trespass or ejectment.

[page 60]

In Georgeski v Owners Corporation SP49833 (2004) 62 NSWLR 534, in

relation to whether having a licence to occupy a jetty was sufficient to give
title to sue in trespass, Barrett J of the New South Wales Supreme Court
referred to Western Australia v Ward and explained (at [95]):
… trespass to land entails interference with possession and is maintainable only by someone
who has a right of possession. As between landlord and tenant, it is the tenant who may sue for
trespass. As between licensor (freeholder) and licensee, where no right of possession is involved,
it is the licensor who may sue for trespass.

The issue of title to sue was discussed in Shannon v New South Wales
[2015] NSWDC 69. The court noted that the right to sue in trespass to land
required the plaintiff to have ‘possession of the land to the exclusion of all
others’ and that exclusive possession was distinct from ownership: at [23].
The plaintiff had sold the land to his parents in 1993 in order to satisfy a
property settlement arising from his divorce. The transfer in title had no
effect upon the plaintiff’s possession and occupation of the property and he
continued to maintain the property and run cattle on it for commercial
purposes. The plaintiff had title to sue as he was in possession of the land and
‘as a matter of fact and practicality, the only person who could be approached
for permission to enter the land’: at [34].

Co-owners
4.10 Land may be owned by more than one person in the form of either a
joint tenancy or a tenancy in common. Each co-owner is entitled to exclusive
possession to all of the land, so a co-owner cannot sue another co-owner
unless he or she is wrongfully excluded from the land: Luke v Luke (1936) 36
SR (NSW) 310.

4.11 If the property is co-owned but not all owners occupy the land, it is
the co-owner in possession who has title to sue in trespass. In Baker v Police
[1997] 2 NZLR 467, a husband and wife owned property, but they had
separated and the husband lived in the house. The wife went to the house in
the company of a police officer to retrieve some of her property. The husband
ordered the officer off the property and this was complied with. However, at
the invitation of the wife, the officer re-entered the house. The husband
became aggressive and was arrested for assaulting a police officer in the
execution of their duty. The husband appealed the conviction, alleging that
the officer was not lawfully in the house at the time of the assault. The New
Zealand High Court allowed the appeal, holding that, though the wife was a
part-owner of the property, she was not an occupier. To sue in trespass, a
plaintiff had to have possession, not ownership, and only an occupier could
grant a licence to a third party to enter the premises.

Easements and Profits à Prendre

4.12 A person with a right in the form of an easement or profit à prendre
may be entitled to sue in trespass and this is an exception to the general rule
that only a person with exclusive possession may sue: Fitzgerald v Firbank
[1897] 2 Ch 96; Mason v Clarke [1955] AC 778; McDowall v Reynolds [2004]
QCA 245 at [7].
An easement is a limited right enjoyed by one person over another’s land,
for example, a right of way. A profit à prendre is a right exercised by one
person in the soil of another,

[page 61]

accompanied by a participation in the profits of the soil, for example, a right

to take timber, dig sand, or pasture sheep and cattle. A profit à prendre differs
from an easement because it involves a right of profit.

Purchasers Under a Contract of Sale

4.13 Title to sue in trespass to land is complicated when a contract of sale
over land is entered into. Title to sue as purchaser was considered in Cousins
v Wilson [1994] 1 NZLR 463. A large residential property in Dunedin was
sold by an agreement which provided that the property was at the sole risk of
the vendors until possession was given and taken, and that if there was any
destruction or damage to the property before possession, the purchase price
was to be reduced by an amount equal to the diminution in value of the
property. Five days after settlement, the purchasers discovered that the
defendant, who owned land adjacent to the property, had removed, felled and
lopped trees and cleared bush to improve the view from his property. This
work included the removal or destruction of 20 mature trees. The vendors
had also been unaware of this work although they had given him permission
to lop some trees and do some other minor work.
The purchasers sued the neighbour in the District Court, claiming damages
for alleged trespass and negligence. On appeal to the New Zealand High
Court it was confirmed that at the time of the trespass the vendors were in
possession of the land according to the terms of the contract of sale. The
purchasers only had an equitable interest in the land and therefore did not
have title to sue in trespass.

3 Actionable Interference
4.14 In Miller v Jackson [1977] QB 966 at 978, it was explained that
trespass to land is an unjustified entry and includes the physical intrusion
into land by tangible objects, be they persons or things. To establish an action
in trespass to land, the interference complained of must be:
direct;
an interference with land; and
unauthorised.

Direct Interference
4.15 Trespass to land in Australia is concerned with interferences that are
direct in the sense that the interference that the plaintiff suffers is immediate
upon the defendant’s act. If the interference is indirect, an action in nuisance
may be possible: see Chapter 25.
The distinction between direct and indirect is not always an easy one to
draw: see Chapter 2. It has been said, for example, that to throw stones onto
another’s land would be trespass, but it would be nuisance, an action on the
case, to build a fence along the boundary which later became dilapidated so
that it leaned over or collapsed onto the plaintiff’s land: Mann v Saulnier
(1959) 19 DLR (2d) 130.

[page 62]

There may be differences of opinion on the same set of facts as to whether

the interference has arisen directly or indirectly. For example, in Southport
Corporation v Esso Petroleum Co Ltd [1954] 2 QB 182; on appeal [1956] AC
218, the master of an oil tanker which was stranded in an estuary jettisoned a
quantity of oil in an attempt to refloat. The oil drifted ashore under the
influence of tide and wind and polluted the beaches under the control of the
Southport Corporation. One judge in the Court of Appeal, and two in the
House of Lords, thought the damage arose consequentially, while another
judge in the Court of Appeal saw the damage as direct. It was indirect, and
actions in negligence or nuisance were the only ones that could succeed.

Interference with Land

4.16 Traditionally, ‘land’ included the area below the surface and the
airspace — cujus est solum ejus est usque ad coelum et ad inferos (to whom
belongs the soil, his it is, even to heaven, and to the middle of the earth). In
modern times, to apply this maxim would mean that an action in trespass
would lie for a passing aeroplane or even a satellite. Therefore, the concept of
what is ‘land’ in a trespass action in modern times is more limited as the
courts have recognised the need to balance the rights of a person in
possession of land with the needs of society in general.

Subsoil
4.17 There may be a trespass below the surface of the land because the
occupier of land is normally in possession of what is under or attached to the
land, and so has title to sue for trespass, even though the existence of the
object below the surface is not known: Elwes v Brigg Gas Co (1886) 33 Ch D
562; Corporation of London v Appleyard [1963] 2 All ER 834; Re Cohen;
National Provincial Bank Ltd v Katz [1953] Ch 88.
Wrongful entry into the subsoil of land in the possession of another is
trespass even if the entry is not through the surface of the land and even
where entry is effected through a natural aperture on the defendant’s own
land: Edwards v Sims Ky 791, 24 SW (2d) 619 (1929). In Burton v Spragg
[2007] WASC 247 at [16], the court held that there was a trespass to land due
to the:
… actual intrusion into the plaintiff’s land by the excavations made by the defendant’s
contractor … Unauthorised subterranean incursions into a neighbour’s property are a well-
recognised species of trespass: Bulli Coal Mining Co v Osborne [1899] AC 351.

4.18 The issue of trespass may be affected by severance of surface and

subsoil rights, for example, where a mining right or some other licence is
granted giving limited rights to interfere with the subsoil (Elwes v Brigg Gas
Co) or there is a Crown grant by way of reservation of the minerals. For
example, gold and silver is vested in the Crown at common law: Attorney-
General v Great Cobar Copper Mining Co (1900) 21 NSWR 351. If there is no
such reservation or licence and material is mined, the defendant may also be
liable in conversion: see Grundt v Great Boulder Gold Mines Pty Ltd (1937) 59
CLR 641 and Chapter 5.
 [page 63]

Airspace
4.19 It was not until 1978 that a superior court was called upon to
adjudicate on the conflict between the public right to use airspace and the
private rights of a landowner to keep the airspace above property free of
modern airborne interference. Lord Justice Griffiths, in the landmark
decision of Bernstein v Skyviews & General Ltd [1978] QB 479, struck a
balance by restricting the rights of an owner in the airspace above land to
such height as is necessary for the ordinary use and enjoyment of the land
and the structures upon it, so that above that height a landowner has no
greater right to the airspace than any other member of the public.
The legal position was summarised by Griffiths J (at 484):
The problem is to balance the rights of an owner to enjoy the use of his land against the rights of
the general public to take advantage of all that science now offers in the use of air space. This
balance is in my judgment best struck in our present society by restricting the rights of an owner
in the airspace above his land to such height as is necessary for that ordinary use and enjoyment
of his land and the structures upon it, and declaring that above that height he has no greater
rights in the airspace than any other member of the public.

4.20 This view accords with the Australian position, for example in LJP
Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR
490. In that case, the defendant was carrying out a commercial development
of its property and sought permission from the plaintiff to erect scaffolding
over the plaintiff’s land. The plaintiff informed the defendant that permission
would be granted only in return for payment of considerable sums of money.
The defendant rejected these terms and built the scaffolding anyway, at a
height of about 4.5 metres above ground level. The plaintiff sued the
defendant, alleging that the incursion of the scaffolding into the airspace
above its land constituted a trespass. The defendant relied on Bernstein v
Skyviews & General Ltd, arguing that there was no trespass because the height
and manner of the entry of the scaffolding into the plaintiff’s airspace did not
interfere with the plaintiff’s use of its land. Not unexpectedly, the Supreme
Court of New South Wales held that the scaffolding did constitute a trespass
to the plaintiff’s land. Hodgson J held (at 495):
I think 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 use of the land which the occupier may see fit to undertake.

In PCH Melbourne Pty Ltd v Break Fast Investments Pty Ltd [2007] VSC 87,
the plaintiff alleged that cladding on the defendant’s building projected up to
60 millimetres into the airspace above his land and sought a permanent
injunction requiring the removal of the cladding, so far as it encroached onto
his land. The injunction was granted, the trial court holding that building in
the airspace was an example of the ordinary use of the land in the particular
area (high-rise buildings). The cladding interfered with ‘the actual and
potential ordinary use of the plaintiff’s land’: at [62] (confirmed on appeal in
Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd (2007) 20 VR 311).

[page 64]

See also Kelsen v Imperial Tobacco Co (of Great Britain and Ireland) Ltd
[1957] 2 QB 334 (a sign); Graham v Morris [1974] Qd R 1 (a crane jib
suspended); LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd
(scaffolding); Bendal Pty Ltd v Mirvac Project Pty Ltd (1991) 23 NSWLR 464
(screens on building to prevent building material from falling).

4.21 Legislation also provides exceptions as to when a trespass to airspace

is actionable. For example, s 72(1) of the Civil Liability Act 2002 (NSW)
provides:
… no action lies in respect of trespass or nuisance by reason only of the flight (or the ordinary
incidents of the flight) of an aircraft over any property at a height above the ground that is
reasonable (having regard to wind, weather and all the circumstances of the case) so long as the
Air Navigation Regulations are complied with.
4.22 If the projection over the airspace results from natural causes (for
example, branches overhanging from a neighbour’s tree) it cannot be trespass
because it is indirect, but an action on the case in private nuisance may lie: see
Chapter 25.

Unauthorised Interference
4.23 Although consent can be regarded as a defence to the trespass actions
(see 6.5), to be an actionable trespass to land ‘it is necessary for the plaintiff to
negative consent’: Lord v McMahon [2015] NSWSC 1619 at [148].
Entering land in the possession of a plaintiff does not amount to trespass if
it is done with consent. In TCN Channel Nine Pty Ltd v Anning (2002) 54
NSWLR 333 at [23], Spigelman CJ stated:
The tort of trespass is committed whenever there is interference with possession of land without
lawful authority or, relevantly, the licence or consent of the person in possession.

Consent may arise in various forms:

express licence;
implied licence; or
by the authority of law.

Express licence
4.24 A person in possession of land may give permission for another to
enter their land for a particular purpose, granting an express licence to enter,
for example giving permission for a tradesperson to enter the premises for the
purpose of carrying out repairs. Once the purpose of the licence has been
achieved, the licence comes to an end and the licensee must depart within a
reasonable time. If they stay beyond a reasonable time, they become
unauthorised.

4.25 If a licence is granted for a particular purpose and the licensee enters
the property for a different purpose, then they will be a trespasser. In Barker v
R (1983) 153 CLR 338; 47 ALR 1, the defendant had the permission of the
owner of the property to look after the property while they were away.
However, instead the defendant entered the house and removed the furniture.
It was held that the defendant was a trespasser as he had authority

[page 65]

to enter the house for the purpose of security, but instead he had entered with
the purpose of committing theft.

4.26 The difficulty lies in cases of entry for mixed purposes as in Healing
(Sales) Pty Ltd v Inglis Electrix Pty Ltd (1968) 121 CLR 584. In that case, the
defendants had a contractual right to enter the plaintiff’s commercial
premises to repossess certain goods. In purported exercise of the contractual
right to enter to repossess nominated goods, the defendant took possession of
the other goods also, to which there was no right. The High Court held that
there was no trespass despite the fact that the defendant had exceeded its
licence to enter.

Implied licence
4.27 The decision of the High Court of Australia in Halliday v Nevill
(1984) 155 CLR 1; 57 ALR 331 can be seen as a substantial inroad into the
common law’s desire to promote ownership and possession of land as a
fundamental right by balancing it against the need for public officers to
exercise powers and carry out duties conferred by statute.

4.28 In Halliday v Nevill, the majority (Gibbs CJ, Mason, Wilson and
Deane JJ) held that when police entered onto private property in order to
arrest a driver of a motor vehicle in the driveway of a property which was not
his home, but out of which he had been seen driving a vehicle (when he was
known to the police as a disqualified driver), this was not a trespass as there
was an implied licence to enter.
The majority held:
The most common instance of such an implied licence relates to the means of access, whether
path, driveway or both, leading to the entrance of the ordinary suburban dwelling house. If the
path or driveway leading to the entrance of such a dwelling is left unobstructed and with
entrance gate unlocked and there is no notice or other indication that entry by visitors generally
or particularly designated visitors is forbidden or unauthorized, the law will imply a licence in
favour of any member of the public to go upon the path or driveway to the entrance of the
dwelling for the purpose of lawful communication with, or delivery to, any person in the house:
at CLR 7; ALR 333.

No doubt, pragmatic considerations such as not wishing to unduly hamper

the day-to-day enforcement of the criminal law affected the decision of the
majority in that case, but significant policy considerations underpin it.
However, the decision must be seen as a significant diminution of the
common law rights of owners or occupiers of property to complain of
trespass. Brennan J, in dissent, made the following observations:
There is, if course, a tension between the common law privileges that secure the privacy of
individuals in their own homes, gardens and yards and the efficient exercise of statutory powers
in aid of law enforcement. The contest is not to be resolved by too ready an implication of a
licence to police officers to enter on private property. The legislature has carefully defined the
rights of the police to enter; it is not for the courts to alter the balance between individual
privacy and the power of public officials. It is not incumbent on a person in possession to
protect his privacy by a notice of revocation of a licence that he has not given; it is for those who
infringe his privacy to justify their presence on his property. There may well be a case for

[page 66]

enlarging police powers of entry and search, but, that is a matter for the legislature: at CLR 20;
ALR 243.

See also Robson v Hallett [1967] 2 QB 939 at 951.

The majority in Halliday v Nevill did concede that an implied refusal or
withdrawal of the licence might arise, but otherwise affirmed that the path or
driveway is held out by an occupier as the bridge between the public
thoroughfare and his or her private dwelling upon which a passerby may go
for a legitimate purpose.

4.29 The implied invitation to the public to enter is limited to bona fide
entrants, that is, persons entering the property for legitimate purposes. In
Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457, the
defendants, a television crew, entered the plaintiff’s business premises with
one of the plaintiff’s customers. They filmed videotape of the interior of the
premises and harassed those on the premises. The court held that the
defendants had trespassed on the plaintiff’s premises as the plaintiff’s implied
invitation to the public to visit its business premises was limited to clients and
members of the public bona fide seeking information or advice, and did not
extend to unwanted visitors such as intrusive film crews or, for that matter,
robbers. See also Gallagher v McClintock [2014] QCA 224 where it was held
that any licence of the appellant to be on church land was subject to his
complying with statutory requirements in relation to religious worship as well
as requiring him to ‘behave in reasonable conformity with the requirements
of the religion in which he was participating’: at [26].

4.30 In TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333, the
respondent leased land upon which he had built a motorcycle track that was
used for training purposes. The land was also used for the storage of used
tyres. The storage of the tyres was of concern to the Environmental
Protection Authority (EPA), which had been observing deliveries of the tyres.
The boundary of the property was fenced, with locked gates at the driveway.
On the day in question, a delivery of tyres was made; the respondent
unlocked the gates to allow the truck access to the property but did not lock
the gates behind the truck. Members of the EPA, the local council, the police
and a television journalist with crew, together with employees of the
appellant, entered through the gate onto the property. Seeing the journalist,
the respondent asked where she was from and, upon being informed that she
was from A Current Affair, Channel Nine, the respondent first of all stated
that he had a statement to make but then said that he wanted no persons on
his property. The respondent sued in trespass to land, seeking damages,
including damages for the mental trauma he suffered as a result.
The appellant argued that the use of the land as a tyre dump and/or as a
racing track necessarily involved permission for members of the public to
enter, or, alternatively, that there was an implied right to enter as a member of
the public to communicate with the occupier, in this case, to ask if the
respondent would grant an interview. The court held that the mere fact that
the respondent had not relocked the gates did not of itself establish an
implied licence to enter: at 343–4. The scope of an implied licence would be
for the purposes of the conduct of the tyre business or the racetrack. As the
appellant did nothing that was referable to these purposes, there was no
implied licence. As for the alternative argument, the evidence before the court
did not establish any request for permission to film

[page 67]

but rather an assertion that they were there to do a story. Therefore, the
appellant also failed to establish that they were on the property for the
purpose of requesting authority to film or conduct an interview: at 349.

Revocation or withdrawal of licence

4.31 A licence may naturally come to end upon its purpose being achieved,
or the licence may be withdrawn or revoked. Revocation may take place after
the plaintiff has initially consented to the entrance or may be withdrawn prior
to any entry that may otherwise be implied. If a licence is revoked after being
given or implied:
the licensee must be given notice of the withdrawal by the person in
possession of the land; and
 a reasonable time must be allowed to permit the licensee to depart:
Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605.

4.32 It is a question of fact whether there has been communication of the

revocation. See Maynes v Casey [2011] NSWCA 156 at [28], where the court
held that the authorities did not support the argument that the ‘mere
publication of a notice, unbeknownst to the visitor, was sufficient to render
that person a trespasser’.
In Wilson v New South Wales (2010) 278 ALR 74 at [51], Hodgson JA
(McColl and Young JJA agreeing) stated:
… the licensee must first have notice that the licence is revoked; and consistently with the
general legal position in relation to the giving of notice, that requires a communication to the
licensee, which the licensee understands as a revocation of the licence or which a reasonable
person in the position of the licensee would understand as a revocation of the licence. This
means in turn that the communication must be such that the licensee did understand it, or a
reasonable person in the position of the licensee would understand it, both as coming from a
person with authority to revoke the licence and as having such content as to constitute such a
revocation. If the communication comes from a person apparently in occupation of the land in
question, this will generally be enough to convey to a licensee or to a reasonable person in the
position of the licensee that it is from a person with the authority to revoke the licence.

As to whether revocation of a licence may be by only one co-owner of the

property, see the discussion in New South Wales v Koumdjiev (2005) 63
NSWLR 353.

4.33 An implied licence may be revoked by securing gates, as in TCN

Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333, or placing written
notices to warn off strangers or particular classes of entrants.
Prior communication with the occupier may also negate any implied
licence to enter the property. In Plenty v Dillon (1991) 171 CLR 635; 98 ALR
353, the plaintiff owned a small farm in South Australia and was the parent of
a 14-year-old daughter, against whom allegations that she had committed
offences had been made. Under the relevant legislation, a complaint was laid
against the daughter alleging she was in need of care and control. A justice
issued a summons to the child to appear and police made several unsuccessful
attempts to serve her. On one occasion, it was left with the father but the child
did not appear. A fresh summons was issued to the child, as were notices to
the father and mother to attend.

[page 68]

Mr Plenty had previously made it clear in statements and correspondence

that no one was to enter his land to serve the summons and that it was to be
served by post. Two police officers again entered the property to serve the
daughter and the parents. The High Court held that entry onto private land
against an owner’s wishes was not justified under the common law merely as
part of an attempt to serve process such as a summons which is non-coercive,
though it might be different if entry was to effect an arrest. Mr Plenty had
clearly revoked any implied consent to enter his land.

4.34 Upon the end or the withdrawal of consent, the licensee does not
immediately become a trespasser; reasonable time must be allowed for them
to leave. In Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605, a patron
of a racecourse, who had purchased a ticket entitling entry, was forcibly
removed in breach of the contract of entry. He was held to be a trespasser as
he failed to leave within a reasonable time after consent to his presence had
been revoked.

4.35 In Kuru v New South Wales (2008) 246 ALR 260, the High Court
considered whether a plaintiff could revoke consent given to police officers to
enter premises to investigate reports of domestic violence. A majority held
that the plaintiff had revoked his consent for the police officers to be on the
property and, by remaining after the revocation, the officers were trespassing.
It was stated (at [43]):
As was pointed out in this court’s decision in Plenty v Dillon, it is necessary to approach
questions of the kind now under consideration by recognising the importance of two related
propositions. First, a person who enters the land of another must justify that entry by showing
 either that the entry was with the consent of the occupier or that the entrant had lawful
authority to enter. Secondly, except in cases provided for by the common law and by statute,
police officers have no special rights to enter land. And in the circumstances of this case it is also
important to recognise a third proposition: that an authority to enter land may be revoked and
that, if the authority is revoked, the entrant no longer has authority to remain on the land but
must leave as soon as is reasonably practicable. [footnotes omitted]

This overturned the decision of the New South Wales Court of Appeal
(New South Wales v Kuru (2007) Aust Torts Reports ¶91-893) where the
majority held that there was no trespass despite the revocation, as at the time
the police had not finished their investigations and were ‘entitled at common
law to stay until they had taken reasonable steps to satisfy themselves no
offence had been committed’: at [178] per Ipp JA.

Authorised by law
4.36 Many statutes, state and federal, confer the right of non-consensual
entry to property by officers for the purpose of carrying out their functions,
for example Fire and Emergency Services Act 1990 (Qld) s 53 (an authorised
fire officer may enter any premises to protect persons or property from
danger or potential danger caused by fire); Local Government Act 1993
(NSW) s 199 (authority to enter premises).
Where there is clear and unambiguous statutory conferral of a right of
entry upon a public official, such as an electricity meter reader, preventing a
legitimate right of entry may expose the occupier to breach of some statutory
provision attracting a penalty and perhaps termination of the relevant service,
for example Electricity Act 1994 (Qld) ss 137 and 138

[page 69]

(authority to enter a property for the purpose of meter reading and if

entrance is refused or obstructed the electricity supply may be disconnected).

4.37 Under the common law, police officers, or citizens, have the right to
enter private property in specific situations such as following an offender who
is attempting to escape or to prevent a murder. However, entry upon property
in the execution of criminal law is often done under the authority of statute.
The legislation in relation to the power of police to enter premises in the
various Australian jurisdictions was enacted to overcome the limits on that
power arising from the High Court decision in Plenty v Dillon (1991) 171
CLR 635; 98 ALR 353. For example, s 19 of the Police Powers and
Responsibilities Act 2000 (Qld) allows a police officer to enter premises and
remain there for a reasonable time in circumstances that would otherwise
amount to a trespass. If the property is a private dwelling, the police cannot
enter without consent of the person in possession or unless they have a
warrant. There are exceptions to this; for example, a police officer may enter
private property without consent in order to save a life. See also Crimes Act
1914 (Cth) s 3T; Law Enforcement (Powers and Responsibilities) Act 2002
(NSW) ss 9–10; Police Administration Act 1978 (NT) s 119; Summary
Offences Act 1953 (SA) s 72B; Crimes Act 1958 (Vic) s 459A; Criminal
Investigation Act 2006 (WA) s 33.

Trespass ab initio
4.38 Where a person enters land pursuant to common law or statutory
authority and commits a wrongful act while on the land, the person is
deemed to have been a trespasser ab initio (from the beginning). The legality
of the entry is vitiated by the illegal act: see The Six Carpenters’ Case (1610) 8
Co Rep 146a; 77 ER 695; Chic Fashions (West Wales) Ltd v Jones [1968] 2 QB
299; O’Brien v Shire of Rosedale [1969] VR 112.
If the plaintiff gave consent and the consent is later revoked, the entrant
becomes a trespasser upon failing to leave within a reasonable time. In
contrast, the doctrine of trespass ab initio applies to persons who are
permitted to enter a plaintiff’s land under the provisions of a statute (for
example, an electricity meter reader) or under the common law (for example,
a police officer in pursuit of a felon).
4.39 By committing some positive wrongful act (misfeasance, not mere
nonfeasance), the entrant is treated as a trespasser from the time of entry, no
matter how innocent or proper the conduct up until the time of the abuse.
This doctrine is not without its critics: see for example, Barker v R (1983) 153
CLR 338; 47 ALR 1 per Brennan and Deane JJ. Lord Denning MR, one of the
well-known critics of the doctrine, however, used it to make minicab drivers
liable for unlawfully touting for business. In Cinnamond v British Airports
Authority [1980] 1 WLR 582, the British Airports Authority prohibited six
minicab drivers from entering Heathrow Airport. Lord Denning stated (at
588):
… when one of these car-hire drivers picks up a passenger at a London hotel and drives to the
airport, he has a right to enter so as to drop his passenger and luggage. But the driver has no
right whatever to hang about there so as to “tout” for a return fare. By so doing he is abusing the
right which is given to him by the law: and that automatically makes him a trespasser from the
beginning.

[page 70]

4 Fault
4.40 As it is a trespass action, the interference to the plaintiff’s possession
of the land must be by the fault of the defendant, that is, the act must be
intentional or negligent. The fact that the defendant is mistaken in the belief
that they have consent or lawful authority to enter the land does not make the
entry unintentional: Nyoni v Shire of Kellerberrin (No 6) [2015] FCA 1294.
In Public Transport Commission (NSW) v Perry (1977) 137 CLR 107; 14
ALR 273, a passenger at a railway station had an epileptic fit and fell onto the
tracks, where she was not permitted to go. A majority of the High Court of
Australia held that she was not a trespasser on the railway tracks, as she had
gone onto them involuntarily under the effects of the fit. Similarly, in Smith v
Stone (1647) Style 65; 82 ER 533, the defendant who had been thrown onto
the plaintiff’s land had not committed an intentional act and was not at fault.
In League Against Cruel Sports Ltd v Scott [1986] QB 240, it was held that
the master of the hounds was liable for the trespass of the hounds entering the
plaintiff’s land if the master had intended the hounds to enter or failed to
prevent them from entering through negligence.

5 Examples of Actionable Interferences

4.41 The most common forms of trespass to land are unauthorised entry
or failure to leave after consent has been revoked. However, trespass may
consist of any of the following forms, provided there is no lawful justification.

Placing or Leaving Objects on Land

4.42 A person who places or throws any material object onto the land of
the plaintiff commits a trespass: Westripp v Baldock [1939] 1 All ER 27 (a
ladder placed against the wall); Watson v Cowen [1959] Tas SR 194 (earth);
Smith v Stone (1647) Style 65; 82 ER 533 (a person); Jones v Stones [1999] 1
WLR 1739 (flower pots on wall).
In Konskier v B Goodman Ltd [1928] 1 KB 421, the defendants had
permission from the owner of an adjoining house to pull down part of a
chimney in return for their promise to the owner that the chimney would be
rebuilt and any damage made good. Rubbish was left on the roof of the house
which caused the gutters to block and flooding in the basement. The court
held that the defendants only had a limited licence and were bound to remove
the rubbish within a reasonable time after their work was completed. By
leaving the rubbish, a trespass was committed and for every day it remained it
was a continuing trespass: see 4.46.
Animals
4.43 A person may be liable for trespass to land in respect of an entry on
land by animals where that person directed their entry, for example, by
ordering or encouraging the animals or by negligently failing to prevent their
entry (for example, the master of a hunt in respect of hounds: see Beckwith v
Shordike (1767) 4 Burr 2092; 98 ER 91).

[page 71]

That person may also be liable vicariously for employees, agents or others
over whose conduct control is exercised by them, provided they commit a
trespass: League Against Cruel Sports Ltd v Scott [1986] QB 240. For liability
for animals, see Chapter 26.

Transient Interferences with Airspace

4.44 Land includes the airspace at a height which is for the ordinary use
and enjoyment of the land and the fixtures upon it: Bernstein v Skyviews &
General Ltd [1978] QB 479. It was originally thought there could be no
trespass by mere incursion into the airspace without touching the surface of
the land. In Pickering v Rudd (1815) 4 Camp 219; 171 ER 70, Lord
Ellenborough expressed an early view that the passage of a balloon in flight
could not be a trespass unless it actually landed. In Clifton v Bury (1887) 4
TLR 8, it was held that bullets fired from a rifle range on nearby land which
passed over the plaintiff’s land at 75 ft was not a trespass in the strict sense of
that term (although it could form the basis for nuisance as an action on the
case), but that it would be a trespass if the bullets fell onto the land.

4.45 However, the better view is that a transient interference with the
airspace may be a trespass. In Davies v Bennison (1927) 22 Tas LR 52, the
defendant fired at a neighbour’s cat on the neighbour’s roof. The bullet killed
the animal and remained in its body so that in a sense it remained in the
airspace above the land. It was held that a wrongful intrusion (even if only
transient) into the airspace over land of another could constitute trespass to
land, at any rate at such a low height.1

Continuing Trespass
4.46 An interference with land that is continuous, in the sense that the
trespasser remains on the land or the goods remain on the land, is referred to
as a ‘continuing trespass’. There is a separate cause of action for each day the
interference continues: Konskier v B Goodman Ltd [1928] 1 KB 421.
Therefore, a new cause in trespass to land arises each day and a new
limitation period commences each day. Courts will take into account the fact
that an interference is a continuing trespass if the plaintiff seeks the remedy of
an injunction, as it may add weight to the argument that an award of damages
would not be an adequate remedy: see 4.65.

4.47 Where there is a continuing trespass, a subsequent transferee of the

land may sue: Hudson v Nicholson (1839) 5 M & W 437; 151 ER 185. In the
case of things left on land, the doctrine is limited to failure to remove
trespassory chattels but does not apply to a continuing failure to restore: Clegg
v Deardon (1848) 12 QB 576; 116 ER 986; Lord v McMahon [2015] NSWSC
1619 at [156].

6 Remedies
4.48 The remedy for trespass to land will depend upon the type of
interference and whether the plaintiff suffered any loss.

[page 72]
Self-help
4.49 A plaintiff in possession of the land may use force to resist a wrongful
or attempted entry by a trespasser, but the force must be reasonable.
Reasonable force may be used to remove a trespasser who fails to leave within
a reasonable time of being requested: Cowell v Rosehill Racecourse Co Ltd
(1937) 56 CLR 605.
In Hemmings v Stokes Poges Golf Club [1920] 1 KB 720, the golf club had
employed Hemmings under an employment contract which included a right
for him to occupy a cottage. His employment was terminated but he refused
to leave the cottage. The golf club sent some men who entered the cottage
with reasonable force and removed the plaintiff, his wife and their furniture.
He sued for assault, battery and trespass to land. The English Court of Appeal
held that in the absence of proof of the use of unreasonable force, no cause of
action arose.

4.50 A plaintiff ousted by a trespasser may regain possession by using

force. Therefore, an owner or lawful tenant can expel squatters or ‘sit in’
demonstrators. However, the force used must be reasonable and, if a plaintiff
is in doubt, he or she should enlist the aid of the police or pursue a civil action
for recovery of possession. The lessor’s right to re-enter demised premises to
expel a lessee exists under the common law and under statute.
In Queensland, ss 277 and 278 of the Criminal Code authorise the use of
reasonable force but the act of self-help cannot cause bodily harm.

Damages
4.51 In SSYBA Pty Ltd v Lane [2013] WASC 445 at [81] it was stated:
A trespass to land always involves an award of damages even if the amount is nominal. It
vindicates the owner’s right to quiet possession. A trespass which causes actual damage entitles
the plaintiff to compensation for that damage.

The damages awarded will take into account the loss suffered and the
nature of the plaintiff’s interest in the land: Finesky Holdings Pty Ltd v
Minister for Transport for Western Australia (2002) 26 WAR 368 at [260].

Nominal damages
4.52 Nominal damages may be awarded for trespass to land where an
interference with the plaintiff’s possession has been proven but there is no
actual damage: Windridge Farm Pty Ltd v Grassi (2011) 254 FLR 87; Finesky
Holdings Pty Ltd v Minister for Transport for Western Australia (2002) 26
WAR 368. An example can be found in Hill v Higgins [2012] NSWSC 270
where it was held that the trespass to the plaintiff’s land by the deposit of
bricks and the unauthorised entry by the defendant to remove the bricks had
caused no loss and awarded nominal damages in the amount of $220.
In Finesky Holdings Pty Ltd v Minister for Transport for Western Australia
(2002) 26 WAR 368, although the defendant had encroached upon the land
that the plaintiff had an interest in as a sublessee (entitled to establish a
quarry and mine it), there was no evidence that the plaintiff ever intended to
do build a quarry. As there was no diminution

[page 73]

in the value of the land, and taking into account the plaintiff’s interest in the
land, an award of $1000 nominal damages was made.
However, the object of trespass to land is to protect the plaintiff’s right to
exclusive occupation of the land; so even though there may be no damage to
the land, the nominal damages may be quite significant. For example, in TCN
Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333, nominal damages of
$25,000 were awarded. Spigelman CJ stated (at [178]):
General damages for trespass should reflect the significant purpose of vindicating the plaintiff’s
right to exclusive occupation.
4.53 Should the defendant obtain some benefit from the trespass (for
example, occupying it as a tip, as in Whitwham v Westminster Brymbo Coal
and Coke Co [1896] 1 Ch 894), the court may order payment of a reasonable
sum for the use resulting in the benefit. In Yakamia Dairies Pty Ltd v Wood
[1976] WAR 57, the plaintiff recovered the value of agistment for the
defendant’s trespass in pasturing cattle on the plaintiff’s land. See also
Downing v WIN Television (NSW) Pty Ltd (No 2) [2011] NSWSC 563, where
the trespass was the failure to remove a television tower, building and fence
from the plaintiff’s land. Damages were assessed as ‘the reasonable or market
rental value of the land during the time of the defendants’ occupancy’: at [9].
See also 4.69.

Compensatory damages
4.54 If there is damage resulting from the trespass, a plaintiff is entitled to
recover compensatory damages as ‘a trespasser is liable for any loss he or she
causes to the land or the value of the land in question’: Windridge Farm Pty
Ltd v Grassi (2011) 254 FLR 87 at [145]. Such damages are awarded for the
actual damage suffered by the plaintiff that is the natural and probable
consequence of the trespass: Palmer Bruyn & Parker Pty Ltd v Parsons (2001)
208 CLR 388; 185 ALR 280.

4.55 Where the trespass has caused material damage to the land, the
measure of compensatory damages has traditionally been regarded as the
diminution in the value of the property caused by the trespass: Jones v Shire of
Perth [1971] WAR 56. Now the courts are more realistic in assessing the
damage and the method of assessment will depend upon what is considered
reasonable in the circumstances: see Fish Steam Laundry Pty Ltd v Col
Johnson Electrics Pty Ltd (1992) 2 Qd R 585; Port Stephens Shire Council v
Tellamist Pty Ltd (2004) 235 LGERA 98 at [186] and [207].

4.56 If the decrease in the value of the land is awarded, the courts compare
the value of the land immediately prior to the trespass and after. In Port
Stephens Shire Council v Tellamist Pty Ltd (2004) 235 LGERA 98 at [215], the
basis of the valuation method was explained as:
… what would a person desiring to buy the land have had to pay for it on the relevant date to a
vendor willing, but not desirous, to sell it for a fair price.

Any subsequent appreciation in the value of the land due to market forces
is disregarded: Port Stephens Shire Council v Tellamist Pty Ltd.

[page 74]

4.57 In the appropriate case, the cost of reinstatement, as opposed to the

decrease in value of the land, is admissible as the measure of damages: Evans v
Balog; Evans v Progress & Securities Pty Ltd [1976] 1 NSWLR 36; C R Taylor
(Wholesale) Ltd v Hepworths Ltd [1977] 1 WLR 659; [1977] 2 All ER 784. In
SSYBA Pty Ltd v Lane [2013] WASC 445, the defendant had attached several
brackets to the wall of the plaintiff’s neighbouring building without consent,
constituting a trespass. These brackets, along with their load, caused
significant damage to the structure of the wall. When the defendant did
remove the brackets, they were cut off with an angle grinder, leaving the bolts
in the wall. The court accepted the evidence of the schedule of repair to award
compensatory damages. Damages were awarded to cover the cost of having
the remaining bolts removed and the wall repaired. In addition consequential
loss was allowed that included supervision of the work, a survey of the
boundaries of the adjoining properties and the cost of removing, storing and
returning the stored goods of the premises during the restoration.

4.58 Restoration may not be a proper measure of the damage if it is

unreasonably disproportionate to the reduction in value. In Jones v Shire of
Perth [1971] WAR 56, soil was removed causing loss of support to the
plaintiff’s land, thereby reducing its value by $2000. The cost of restoration at
$10,000 was regarded as too disproportionate. In Parramatta City Council v
Lutz (1988) 12 NSWLR 293 at 335, McHugh JA referred to this as the
‘fundamental rule’:
When the choice is between damages which constitutes the value of the property destroyed or
the cost of reinstating and restoring that property and the cost of restoration exceeds the value
of the destroyed property, a plaintiff is entitled to the cost of reinstatement only if it is
reasonable to have the property reinstated and restored: Evans v Balog; Evans v Progress &
Securities Pty Ltd [1976] 1 NSWLR 36 at 39–40 per Samuels JA.

See Hansen v Gloucester Developments Pty Ltd [1992] 1 Qd R 14, where the
court held there were no special circumstances to justify awarding the cost of
reinstating the property ($60,000) when the decrease in value was $17,000
and the value of the land was $70,000.

4.59 In Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; 185
ALR 280, the High Court held that damages can be recovered in cases of
intentional torts for the harm that is the natural and probable consequence of
the tortious act. Reasonable foreseeability is not the correct test. For example,
in Hogan v A G Wright Pty Ltd [1963] Tas SR 44, the plaintiff received
damages for the consequential loss of a horse which was killed after it escaped
through a broken fence which was damaged by the defendant’s trespassing
bulldozer.

4.60 Where chattels are severed from the land by an act of wilful
wrongdoing, for example sandstone is cut and taken from a quarry or gravel
removed, the plaintiff may recover either the value of the chattel at the
moment of severance or the diminution in the value of the land. See Port
Stephens Shire Council v Tellamist Pty Ltd (2004) 235 LGERA 98, where it was
held that the removal of trees did not cause any diminution in the value of the
land and

[page 75]

nominal damages were awarded for the trespass. If the trespass was innocent,
the defendant may be entitled to retain the cost of severance: Bilambil-
Terranora Pty Ltd v Tweed Shire Council [1980] 1 NSWLR 465.

Exemplary and aggravated damages

4.61 If a trespass is done wilfully, or there are aggravating circumstances,
aggravated and exemplary damages may be awarded: Greig v Greig [1966] VR
376; [1966] ALR 989.

4.62 Exemplary damages Exemplary damages are awarded by a court to

punish and deter the defendant. In XL Petroleum (NSW) Pty Ltd v Caltex Oil
(Aust) Pty Ltd (1985) 155 CLR 448 at 472, the High Court awarded exemplary
damages in relation to trespass to land ‘in an amount that would be likely to
have a deterrent effect — sufficient to make Caltex smart’. However, it was
noted in TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 at [185],
that exemplary damages are rarely awarded for trespass to land and require
something more than just evidence of fault. See also New South Wales v Ibbett
(2006) 229 CLR 638; 231 ALR 485 at [33]. In Craftsman Homes Australia Pty
Ltd v TCN Channel Nine Pty Ltd [2006] NSWSC 519 at [949], the amount of
$120,000 was awarded in exemplary damages, the court noting:
The circumstances of this trespass were so bad that they should be punished and future like
trespasses firmly discouraged.

4.63 Aggravated damages Aggravated damages are a form of

compensatory damages, awarded because the defendant’s reprehensible
conduct aggravated the injury to the plaintiff’s dignity or feelings. In New
South Wales v Ibbett (2006) 229 CLR 638; 231 ALR 485, the plaintiff’s son
arrived at her home in the early hours of the morning driving his van with the
police in pursuit. The son drove the van into the garage and closed the door
with the remote control. As the door was closing, an officer dived under the
door. The plaintiff entered her garage to find the officer pointing a pistol at
her son. Both the son and the plaintiff ordered the officer to leave the
premises. Pointing the pistol at the plaintiff, the officer ordered the garage
door to be opened to allow entry to another police officer. The entry to the
plaintiff’s property was held not to have been done with lawful justification
and amounted to trespass to land. In assessing damages, the High Court
awarded aggravated damages, noting that such damages compensate a
plaintiff for injury resulting from the circumstances of the interference: at
[30]. The court stated (at [31]):
The interest of the plaintiff against invasion of the exclusive possession of the plaintiff extends to
the freedom from disturbance of those persons present there with the leave of the plaintiff, at
least as family members or as an incident of some other bona fide domestic relationship. The
affront to such persons may aggravate the infringement of the right of the plaintiff to enjoy
exclusive and quiet possession.

4.64 In TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333, the
plaintiff’s claim for damages for trespass to land included damages for mental
trauma. The New South Wales Court of Appeal held that it was unnecessary
to decide whether damages for personal injury, specifically psychiatric injury,
may be recovered in an action for trespass to land, but

[page 76]

noted that it was undesirable to lay down a rule that such damages were not
recoverable. It was reasoned, in that case, that filming on premises and
attempting to conduct an interview would not result in personal injury, such
as mental trauma, to a person of normal fortitude. However, the court did
award aggravated damages, Spigelman CJ saying (at [107]):
Humiliation, injured feelings and affront to dignity may be a natural and probable consequence
of intrusion by media on private property. Such damage is compensable as aggravated damages.
Such damage is different in kind to mental trauma.

Aggravated damages were also awarded in Craftsman Homes Australia Pty

Ltd v TCN Channel Nine Pty Ltd [2006] NSWSC 519, where a reporter and
film crew deceived the plaintiff by pretending to be potential clients. Smart AJ
stated (at [942]):
 The hurt to feelings, humiliation and affront to dignity experienced by Mr Cox was aggravated
by the way in which the first and third defendants acted in the course of their trespass. That
included Mr Fordham letting the camera crew into the home at Edmondson Park, then, with
cameras rolling, confronting Mr Cox with broad general allegations of poor work and an
accusation of having left a trail of devastation and filming him. No prior notification was given.
The statement that Mr Cox should answer questions rather than “running away” aggravated the
hurt, especially when it was shouted out from the front door while Mr Fordham and the camera
crew were hovering around. Mr Cox must have been aware that his reputation and the business
in which he was deeply involved were being attacked and damaged.

See also Balven v Thurston [2015] NSWSC 1103 (aggravated damages

awarded as trespass to land was committed in the context of intimidation and
the plaintiff’s mental harm was the intended or probable consequence).

Injunction
4.65 The courts have the power to grant an injunction ‘to restrain any
actual, threatened or apprehended trespass to land’: see, for example, District
Court of Queensland Act 1967 (Qld) s 68(1)(b)(xii). The granting of an
injunction is discretionary and the onus is upon the party seeking the
injunction to prove that damages would be inadequate: Lincoln Hunt
Australia Pty Ltd v Willesee (1986) 4 NSWLR 457.

4.66 An injunction may order the tortfeasor to cease or not do an act that
amounts to a tortious interference (prohibitory injunction) or to do a
particular act (mandatory injunction). If it is necessary to reserve the status
quo of the parties until a court resolves the issues in dispute, an interlocutory
injunction may be ordered. In granting an interlocutory injunction, the court
must be satisfied that there is a serious question to be tried and that the
balance of convenience is in favour of the order.

4.67 If the trespass to land is a continuing one, there is a stronger

argument for the granting of an injunction. In Bendal Pty Ltd v Mirvac
Project Pty Ltd (1991) 23 NSWLR 464, an injunction was granted to restrain a
trespass to the plaintiff’s airspace. The court held that the trespass was a
continuing one and, as the evidence pointed towards the conclusion that the
defendant would not be deterred by an award of damages against it, a
mandatory injunction was appropriate.

[page 77]

4.68 An injunction may be refused even if a plaintiff makes out a good

cause of action: Armstrong v Sheppard & Short Ltd [1959] 2 QB 384. No
injunction will be granted if the trespass is past and completed: see Sherman v
Condon [2014] QDC 189. A court may award damages in lieu of an
injunction, if it is satisfied that the harm to the plaintiff is small and capable
of being estimated in monetary terms and to grant the injunction would be
oppressive to the defendant: Shelfer v City of London Electric Lighting Co
[1895] 1 Ch 287.
See also Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd (2007) 20
VR 311, an appeal against the granting of an injunction requiring the
appellant to remove all cladding attached to the surface wall of its building. In
granting the injunction, the trial judge had taken into account that the
encroachment into the respondent’s airspace was a continuing one which
interfered with their potential use of their land. Also relevant was the fact that
the respondent had not delayed in taking action, that the encroachment
conferred upon the appellant a commercial benefit and the appellant had
made no real effort to resolve the issues nor made any reasonable offer of
damages. On appeal, the appellant argued that the judge should have awarded
damages in lieu of the injunction and the injunction would cause them
hardship. The Victorian Court of Appeal dismissed the appeal, holding that a
mandatory injunction was appropriate in the circumstances. As Dodds-
Streeton JA stated (at [139]):
The harm posed to the [appellant] by an injunction is, as in LJP Investments, the removal of a
non-structural addition which will restore the status quo. It will not require demolition of the
building or result in loss of access or other major detriment, although it entails cost and a loss of
 improved appearance. As [the trial judge] implicitly recognised, an injunction will not impose
hardship on the [appellant] out of all proportion to the injury to the [respondent] from a refusal
of such relief, and will not constitute oppression.

Mesne Profits
4.69 If the trespass consists of the defendant temporarily occupying or
using the land, mesne profits may be claimed. Mesne profits are claimed from
the time the wrongful possession commenced until the ejectment of the
defendant. The measure of mesne profits is the value of the market rent that
the trespasser should have been paying for the period of occupation: Lamru
Pty Ltd v Kation Pty Ltd (1998) 44 NSWLR 432; Port Stephens Shire Council v
Tellamist Pty Ltd (2004) 235 LGERA 98 at [193]–[194]. In Davison (as
personal plaintiff representative of the estate of Staines, decd) v Wilkinson
[2006] QSC 212, the respondent was living in a unit that had been left by his
ex-wife, under the terms of her will, to her five daughters as joint tenants.
Notice was given to the respondent requiring him to vacate the premises but
he failed to do so. The court awarded damages assessed at the rental value for
the period of wrongful occupation.

Statutory Relief
4.70 There are various statutes that provide for damages or other remedies
for acts of trespass to land. For example, the Supreme Courts have power to
grant relief to an adjacent or encroaching owner in respect of encroachment
of buildings.

[page 78]

Part 11 of the Property Law Act 1974 (Qld) involves a statutory code for
encroachment. Under the legislation, either the encroaching or the adjoining
owner may apply to the court for relief. The court may order payment of
compensation to the adjacent owner or order that there be a transfer or lease
of the subject land to the encroaching owner: Property Law Act 1974 (Qld) s
185(1). The minimum compensation payable is the unimproved capital value
of the subject land if the encroachment was innocent and three times that
value in other cases: s 186(1).
See also the Encroachment of Buildings Act 1922 (NSW); Encroachment of
Buildings Act 1982 (NT); Encroachments Act 1944 (SA); Property Law Act
1969 (WA). The statutory provisions do not exclude the operation of
common law principles; for example, in Bunney v South Australia (2000) 77
SASR 319, a school building encroached on a private road and the owner was
awarded $900 compensation for the continuing trespass. In the Australian
Capital Territory, Tasmania and Victoria, the common law applies enabling
the encroached landowner to take an action in trespass to land and seek
compensatory damages or an injunction.

7 Limitation Period
4.71 As the interference that forms the basis for an action in trespass to
land involves property, the limitation period is six years except in the
Northern Territory where it is three years: Limitation Act 1985 (ACT) s 11(1);
Limitation Act 1969 (NSW) s 14(1)(b); Limitation Act 1981 (NT) s 11(1)(b);
Limitation of Actions Act 1974 (Qld) s 10(1)(a); Limitation of Actions Act
1936 (SA) s 35; Limitation Act 1974 (Tas) s 4(1)(a); Limitation of Actions Act
1958 (Vic) s 5(1)(a); Limitation Act 2005 (WA) s 12. See also Chapter 14.

Further Reading
R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis
Butterworths, Sydney, 2013, Ch 5.
 H Luntz, D Hambly, K Burns, J Dietrich and N Foster, Torts: Cases and
Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2012, Ch 12.

1. See the extensive review of cases dealing with bullets fired over land in P Butt, ‘Moot Point’ (1978)
52 ALJ 160.
[page 79]
 Chapter 5

Trespass to Personal Property

1 Introduction
5.1 There are three actions that encompass trespass to personal property:
1. trespass to chattels;
2. conversion; and
3. detinue.
Each action is separate and the elements of each are quite distinct.
However, as they are all trespass actions, they all require a direct interference
and that the defendant be at fault.

5.2 The subject matter of all of the actions is personal property. The term
‘personal property’ describes moveable property and is interchangeable with
both of the words ‘goods’ and ‘chattels’. All personal property may form the
subject matter of any of the trespass actions above, provided the law
recognises that someone can have title to the property.

5.3 Goods which are incapable of being regarded as property cannot form
the subject matter of the actions. For example, in Doodeward v Spence (1908)
6 CLR 406; 15 ALR 105, the High Court held that a corpse is not property and
could not form the basis of an action in trespass. However, it has been noted
that parts of a corpse might be property by virtue of dissection or
preservation for the purposes of exhibition or teaching: R v Kelly [1998] 3 All
ER 741. In Roblin v The Public Trustee for the Australian Capital Territory
[2015] ACTSC 100, it was held that the stored semen from a person
constitutes property.
Intangible property cannot be the subject of a trespass action. In Hoath v
Connect Internet Services Pty Ltd (2006) 229 ALR 566, it was held that the
domain name, the IP addresses and the autonomous system (AS) number
were intangible property and were not embodied in any chattel which could
be owned or possessed by the plaintiff and therefore could not form the basis
of an action in trespass to personal property. However, although money in a
bank account is not personal property (Ferguson v Eakin t/as Price Brent
[1997] NSWCA 106 at [9]), a cheque representing the funds may form the
basis of an action: Hunter BNZ Finance Ltd v CG Maloney Pty Ltd (1989) 18
NSWLR 420.

5.4 As real property cannot form the subject of any of the trespass to
personal property actions, the proper action in such instances being trespass
to land. Goods that are attached

[page 80]

to land (fixtures) are regarded by the law as part of the land: Reid v Smith
(1905) 3 CLR 656 at 667; 12 ALR 126. However, upon detachment from the
land, the item becomes a chattel and may be the subject of an action in
trespass: Finesky Holdings Pty Ltd v Minister for Transport for Western
Australia (2002) 26 WAR 368 at [52].

5.5 All of the torts involving trespass to personal property protect the
plaintiff’s possession of goods — ownership is not required to sue: Webb v
Fox (1797) 7 Term Rep 391; 101 ER 1037. Legal possession of personal
property can take the following forms:
actual possession — the plaintiff has the goods in their physical
 control: Horsley v Phillips Fine Art Auctioneers Pty Ltd (1995) 7 BPR
14,360;
constructive possession — the goods are not in the plaintiff’s physical
control, but they retain control of the goods: Kent v Parer [1922] VLR
32; and
right to possession — the plaintiff has a legally enforceable right to
gain possession of the goods: Gatward v Alley (1940) 40 SR NSW 174.
A right to possession is often an incident of ownership.

2 Trespass to Chattels
5.6 The term ‘trespass to chattels’ may be used to encompass all three of
the nominate torts but it also refers, in a technical sense, to a specific
nominate tort.
Trespass to chattels, as a nominate tort, consists of any act of direct
interference with personal property in the possession of another, without
lawful justification. While it is directness that makes it a trespass in a formal
sense, in practice it is the intentional nature of the interference which is
significant. To establish trespass to chattels:
the plaintiff must have the requisite title to sue;
there must be a direct interference with goods; and
the defendant must be at fault.

Title to Sue
5.7 The general statement of law in respect of title to sue in trespass to
chattels is that only the person in actual or constructive possession of the
goods at the time of the interference may sue: Penfolds Wines Pty Ltd v Elliott
(1946) 74 CLR 204.
5.8 There are four exceptions to the requirement of actual or constructive
possession. The common feature of each of the exceptions is a notional
possession by the person out of actual possession, through either possession
through another in respect of whom there is an association, or where a gap in
possessory title to sue might occur. In each of the four exceptions, the plaintiff
may sue for trespass to chattels, although the plaintiff does not have the
requisite possession:
1. a trustee may sue for direct inference to goods in the possession of a
beneficiary (Barker v Furlong [1891] 2 Ch 172);
2. a personal representative (executor or administrator of a deceased
estate) may sue for the trespass to the goods of a deceased occurring
prior to the personal

[page 81]

representative taking actual possession (Tharpe v Stallwood (1843)

5 Man & G 760; 134 ER 766);
3. the owner of a franchise may sue for an interference with franchise
chattels which took place prior to actual possession being taken by
the owner (Bailiffs of Dunwich v Sterry (1831) 1 B & Ad 831; 109 ER
995); and
4. a person with a right to immediate possession may sue in trespass
to chattels where the direct interference by a third person is to
possession of a servant, agent or a bailee holding under a revocable
bailment: Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204.

Bailment exception
5.9 The exception in (4), above, is of most practical importance. If a
servant or agent is in possession of the goods, the law regards that the master
or principal is in actual possession and therefore has title to sue in trespass to
chattels.
If the goods are the subject of a bailment, there must be a right of
possession to those goods by the plaintiff. A bailment is a delivery of goods
from one person (the bailor) to another (the bailee) for some purpose upon a
contract, express or implied, that, after the purpose has been fulfilled, the
goods will be re-delivered to the bailor: Hobbs v Petersham Transport Co Pty
Ltd (1971) 124 CLR 220.
During a bailment, the bailor parts with possession of the goods but not
with ownership. For example, a bailment exists when a person leaves their
goods to be fixed by another: Hollier v Rambler Motors (AMC) Ltd [1972] 2
QB 71; 1 All ER 399 (car left with mechanic to be fixed).

5.10 Under the bailment exception, a person who is not in actual or

constructive possession of the goods at the time of the interference will have
title to sue in trespass to chattels if:
there was a revocable bailment of the goods at the time of the
interference, giving the plaintiff an immediate right to possession; and
the interference was by a person other than the bailee.

5.11 Revocable bailment A revocable bailment (or bailment at will) is

one which allows the bailor at any time to repossess their goods: Manders v
Williams (1849) 4 Exch 339; 154 ER 1242. Such a bailment will arise upon the
terms of the bailment being met or the terms of the bailment being breached
by the bailee: Anderson Group Pty Ltd v Tynan Motors Pty Ltd (2006) 65
NSWLR 400.
In Hill v Reglon Pty Ltd [2007] NSWCA 295 at [41], it was stated that:
The general principle is that in a simple bailment, repudiation of the bailment brings the
bailment to an end: The Anderson Group Pty Ltd v Tynan Motors Pty Ltd (2006) 65 NSWLR 400;
[2006] NSWCA 22 per Young CJ in Eq at [63]; Palmer on Bailment, 2nd ed, (1991) Sydney, Law
Book Company Ltd. Both parties accepted that a reference to an act inconsistent with or
repugnant to the bailment was a reference to a repudiation of the bailment.
 In that case, there was a hire agreement which allowed the respondent’s
scaffolding to be hired out by the bailee. The terms of the bailment were
breached when the scaffolding

[page 82]

was given by the bailee to another party to on-hire. Due to the breach of the
terms of the bailment, the respondent had an immediate right to possession:
at [84]–[85].

5.12 Interference The interference must have been committed by a

person outside of the bailment relationship. Therefore, the exception will not
apply if the bailee voluntarily delivered possession to the third party (Penfolds
Wines Pty Ltd v Elliott (1946) 74 CLR 204) or if the interference was
committed by the bailee.
In Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204, the plaintiff wine
and spirit merchant and vigneron claimed an injunction to restrain James
Elliott, a hotelkeeper operating the Central Hotel at Singleton, New South
Wales, from collecting, disposing of, parting with, possessing, or in any way
dealing or handling the plaintiff’s bottles or placing any other liquor in them.
The plaintiff, along with 40 other bottlers, was a member of a branded bottle
association that desired to protect owners of bottles who sold liquid products
as the contents but not the bottles themselves. The plaintiff’s bottles were
embossed with the words, ‘This bottle is the property of Penfolds Wines Ltd’
or similar wording. The invoices accompanying the bottles referred to the
brand and confirmed that the company merely loaned the bottles and that
when the contents were used the bottles had to be returned on demand.
Penfolds alleged that Elliott had been receiving, collecting and handling its
branded bottles by filling them with other alcohol. The only specific evidence
before the trial judge was that Elliott filled two bottles, which had been
brought to him by his brother, with wine, and then sold the wine in the
bottles to a Spencer Moon for eight shillings. The action was based on both
trespass to chattels and conversion. A majority of four (Latham CJ dissenting)
held there was no title to sue in trespass to chattels. In the words of Dixon J
(at 224–5):
In English law what amounts to an infringement upon the possessory and proprietary rights of
the owner of a chattel personal is a question still governed by categories of specific wrong.
Trespass was the wrong upon which reliance appeared to be placed in support of the appeal
when it was opened, but, in the end, it seemed to be conceded that this cause of action was
untenable. I think that it is quite clear that trespass would not lie for anything which the
foregoing facts disclose. Trespass is a wrong to possession. But, on the part of the respondent,
there was never any invasion of possession.

At the time he filled the two bottles his brother left with him, he himself was in possession of
them. If the bottles had been out of his own possession and in the possession of some other
person, then to lift the bottles up against the will of that person and to fill them with the wine
would have amounted to trespass. The reason is that the movement of the bottles and the use of
them as receptacles are invasions of the possession of the second person. But they are things
which the man possessed of the bottles may do without committing trespass. The respondent
came into possession of the bottles without trespass. For his brother delivered possession to him
of the two bottles specifically in question.

On the question of the bailment exception, it was stressed that it is only

when a servant, agent or bailee is holding goods under a revocable bailment
and those goods are the subject of a trespass by a third party that the bailor
may sue:
It is submitted that the correct view is that the right to possession, as a title for maintaining
trespass, is merely a right in one person to sue for a trespass done to another’s possession; that

[page 83]

this right exists whenever the person whose actual possession was violated held as servant, agent,
or bailee under a revocable bailment for or under or on behalf of the person having the right to
possession: at 227 per Dixon J.

Penfolds Wines Pty Ltd v Elliot also involved a claim in conversion: see
5.29.
5.13 See also Wilson v Lombank Ltd [1963] 1 All ER 740, where the
plaintiff bought a car from someone who was not the true owner and
therefore title did not pass to the plaintiff. The car needed repair so the
plaintiff left it at a garage. The defendants thought that they owned the car so
they came and took it away from the garage. In fact, the defendants did not
own the car either. It was held that the plaintiff could succeed in an action for
trespass to goods against the defendants, even though the plaintiff was not the
true owner and even though the defendants subsequently had passed the car
on to the true owner. The defendants argued that the plaintiff was no longer
in possession of the car when they took it away, as it was then in the
possession of the garage. Hinchcliffe J rejected this argument, saying (at 743):
[I]n my judgment the plaintiff was in possession of the car; not only did he have the right to
immediate possession, but I do not think that, in the circumstances of this case, the plaintiff ever
lost possession of the car … On the view which I have formed, that the plaintiff never lost
possession of the motor car, it seems to me that the defendants wrongfully took the car and that
the plaintiff is entitled to recover damages.

Finders
5.14 The expression ‘finders keepers’ is to some extent true, since in the
absence of the true owner, a finder does gain possessory rights over the goods.
If a finder takes possession of the goods, they are under an obligation to make
reasonable attempt to find the owner and to take reasonable care of the goods
until returned to the owner: Parker v British Airways Board [1982] QB 1004.
Therefore, a person who interferes with the actual or constructive possession
of the finder may be liable in trespass to chattels, as the finder has title to sue
in the tort. This is due to the fact that trespass to personal property relies on
possession, not on ownership.

5.15 If the finder obtains possession during the course of employment,

possession is vested in the employer and not in the finder personally: Willey v
Synan (1937) 57 CLR 200. Similarly, if the finder is on someone else’s land
and the chattel is attached to or under it, the occupier of the land has title to
sue, not the finder: Elwes v Brigg Gas Co (1886) 33 Ch D 562. However, if the
goods are on another’s property, there must be some obvious intention on the
part of the occupier to control the property and the goods upon it: Parker v
British Airways Board [1982] QB 1004: see 5.38.

Effect of statutory provisions

5.16 It should be noted that statutory provisions may impinge upon an
immediate right to possession. For example, s 178 of the National Credit
Code (Cth) provides that goods subject of a consumer lease cannot be
repossessed by the lessor unless 30 days notice has been given. Repossession
without the required statutory notice is unlawful: Lawrence v Keenan (1935)
53 CLR 153. No immediate right to possession based upon non-payment

[page 84]

can arise until a required statutory notice is served: Henry Berry & Co Pty Ltd
v Rushton [1937] St R Qd 109.

5.17 The Personal Property Securities Act 2009 (Cth) establishes the
Personal Property Securities Register which allows data to be kept of security
interests in personal property in all Australian jurisdictions: s 147. The Act
protects purchasers of personal property where they are not aware of an
existing security interest: see Pt 2.5. For example, a purchaser of a motor
vehicle may search the Personal Property Securities Register for the vehicle’s
serial number to ensure that there is no security interest registered: s 45.
However, the search must be carried out immediately before the purchase.
See also Candy v Christensen [2007] QCA 114, where the appellant alleged
that a swamp wallaby had been removed from his possession by Queensland
Parks and Wildlife officers and claimed in trespass. The Court of Appeal held
that, under the Nature Conservation Act 1992 (Qld), the wallaby was the
property of the state as it was a protected animal and, at the time it was seized,
the appellant did not hold a permit to keep the wallaby pursuant to the Act. It
was held that the appellant had no right to possession of the wallaby and the
claim for damages for its removal failed.

Direct Interference
5.18 As the action is a trespass, the defendant’s act must be direct and not
merely consequential: see Chapter 2. Therefore, in Hutchins v Maughan
[1947] VR 131, it was not a trespass when the plaintiff’s dog died after eating
poisoned baits laid by the defendant as the interference with the dog was
consequential not direct. See also Rural Export & Trading (WA) Pty Ltd v
Hahnheuser (2007) 243 ALR 356 at [72].
It is not essential that the defendant’s act consist of bodily contact with the
chattel; it is sufficient if the defendant brings some material object into
contact with the plaintiff’s chattel, for example, driving a motor vehicle into
the goods or hitting the goods with some object which is thrown. If goods are
capable of moving of their own volition (for example, cattle), it will be
trespass if they are chased away by acts intended to move them, even without
any physical contact, for example, by the use of noise.

5.19 The gist of the action of trespass to chattels is a wrong against

possession: Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204. In Penfolds
Wines Pty Ltd v Elliott, Latham CJ and Dixon J provided examples as to what
types of interference may amount to a trespass: at 214 and 229.

Taking or asportation of a chattel

5.20 In Kirk v Gregory (1876) 1 Ex D 55, the defendant was liable in
trespass for moving goods from one room of the house to another. The
defendant had moved the goods for safekeeping but they could not later be
found. As the defendant was not liable for the disappearance of the goods,
only nominal damages were awarded. See also Fouldes v Willoughby (1841) 8
M & W 540; 151 ER 1153, discussed at 5.40.

[page 85]

Handling of chattels without authority

5.21 In Vine v Waltham Forest London Borough Council [2000] 4 All ER
169, the court held that the ‘act of clamping the appellant’s car was a clear
trespass, to which the respondents had no defence unless they could establish
that the appellant had consented to her car being clamped or alternatively had
voluntarily assumed the risk of her car being clamped’: at 173. In Slaveski v
Victoria [2010] VSC 441, it was held that the handling of documents and
moving them within the premises was an actionable trespass.

5.22 It would appear that to be an actionable trespass there must be more

than a mere touching of the chattel, even though prima facie this would be a
direct interference: Wilson v Marshall [1982] Tas R 287 at 299–300. This may
be explained by the fact that if there is no damage by the touching, an action
in trespass would be trivial or vexatious.

Unauthorised use of chattels

5.23 Without an intention to deprive the plaintiff of possession, which
would be a conversion, the unauthorised use of chattels will amount to a
trespass. Latham CJ in Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204 at
214 stated:
… 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 un-wrecked or
the bottle unbroken. The normal use of a bottle is as a container, and the use of it for this
purpose is a trespass if, as in this case, it is not authorised by a person in possession or entitled to
immediate possession.

See, for example, Schemmell v Pomeroy (1989) 50 SASR 450, where two 14-
year-old boys took a car joyriding and it was held to be a trespass as there was
a direct interference with the vehicle through its unauthorised use.

Fault
5.24 The act giving rise to the trespass must have resulted from the
defendant’s fault, that is, the interference with the goods was intentional or
negligent: see Chapter 2.

5.25 An interference may amount to trespass even if the defendant is

unaware of infringing another’s possession of the chattels. In National Coal
Board v J E Evans & Co (Cardiff) Ltd [1951] 2 KB 861, the defendant cut the
plaintiff’s underground electricity cable and the plaintiff sued in trespass. The
court held that the act did not constitute trespass as the defendant had not
intentionally severed the cable, nor had it been negligent as the defendant
neither knew, nor ought to have known, of the presence of the cable. Lack of
fault may be raised as the defence of inevitable accident: see 6.2.

5.26 The defendant interfering with the goods under the mistaken belief
that they are entitled to the goods is not sufficient to avoid liability as mistake
is not a defence to trespass: see 6.64.

[page 86]

Actionable Without Proof of Damage

5.27 All trespass actions are actionable per se and logically and for practical
reasons, it would be desirable for trespass to chattels to conform to the same
rule (as suggested in William Leitch & Co v Leydon [1931] AC 90 and in
certain dicta in Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204). However,
there have been suggestions to the contrary as early as 1730: Slater v Swann
(1730) 2 Stra 872; 93 ER 906.
5.28 For example, in Wilson v Marshall [1982] Tas R 287, the Tasmanian
Supreme Court held that no trespass was committed by a police officer using
a piece of wire to unlock a car door. In the New Zealand decision of Everitt v
Martin [1953] NZLR 298, it was noted that a plaintiff’s interest in chattels is
not considered by the law as paramount as a plaintiff’s bodily integrity or
their possession of land, suggesting a need to prove damage to chattels in
trespass. It was held that a negligent trespass resulting in no damage to the
goods was not trespass. However, there is no Australian authority for this
proposition: see 5.77.

3 Conversion
5.29 The modern action for conversion derived from trover (from the
French trouver, meaning ‘to find’), which entailed fictional allegations that
the plaintiff had possessed goods, that they had been lost and the defendant
found them; that a demand for their return had been refused; and that the
defendant had converted them to personal use. It is the final element that is
important in the modern tort of conversion — a dealing with goods in a way
that expressly or impliedly denies the plaintiff’s right to possession.
To establish an action in conversion there must be:
title to sue;
a direct interference with the goods that amounts to a repugnant
dealing; and
fault of the defendant.

Title to Sue
5.30 To sue in conversion, the plaintiff must have an immediate right to
possession or be in actual or constructive possession of the goods at the time
of the interference: Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204.
 In commercial dealings, the terms of the contract will often determine the
interest of the parties in the subject matter of the contract. In Management 3
Group Pty Ltd (in liq) v Lenny’s Commercial Kitchen’s Pty Ltd (2011) 281 ALR
482, the appellant entered into a purchase agreement with the respondent for
the supply of kitchen goods, on the terms that the respondent would retain
title to the goods unless it received full payment by the due date. The goods
were delivered to the development site in locked containers to which only the
respondent had access. The appellant went into voluntary administration and
failed to pay the balance owing on the goods by the due date. After that date
the client of the appellant, for which the goods were intended, paid the
respondent the balance owing and took possession of the goods. The
appellant sued its liquidators, client and the respondent in conversion. The
court held that by retaining the keys to the containers with

[page 87]

the goods, the respondent remained in possession and as the appellant had
not paid for the goods in full by the required date, the respondent had an
immediate right to possession. Therefore, at the time of the interference, the
appellant did not have the requisite title to sue in conversion.

5.31 Ownership without some form of possession at the time of the

interference is not sufficient: Wertheim v Cheel (1885) 11 VLR 107. For
example, a drawer of a bearer cheque remains the true owner and entitled to
immediate possession if it does not reach the payee’s hands: Hunter BNZ
Finance Ltd v ANZ Banking Group Ltd [1990] VR 41. However, once the
cheque reaches the person authorised to receive it, any action in conversion
will be by the payee.

5.32 In respect of goods and equipment of a company, in Burnett v

Randwick City Council [2006] NSWCA 196, the court held that a person in
charge of a company’s equipment and business does not have sufficient
possession of the goods to give them title to sue. It was stated (at [96]):
It is a truism to say that a company can only act through its officers and agents. An officer may
well carry on the company’s business and his or her decisions may control the manner in which
the company’s property is held, used, acquired or disposed of. However, this does not vest in
that officer … with such control and dominion over the property of the company as to change
the physical custody of that property from the possession of the company to the possession of
the officer in the sense that the officer then has the immediate right of possession of, or the
possessory title to, the company’s property entitling him or her to sue for trespass or conversion
in his or her own name.

Bailees and bailors

5.33 As an immediate right to possession is sufficient for title to sue in
conversion, a bailor of goods may have title to sue. As this is not an exception
to title to sue as it is for trespass to chattels (see 5.9), the interference with the
bailed goods need not be by a third party to be actionable as a conversion. If a
bailee converts the bailor’s property, that act may give the bailor an
immediate right to possession if the act is wholly repugnant to the bailment
and will entitle the bailor to sue the bailee in conversion: Penfolds Wines Pty
Ltd v Elliott (1946) 74 CLR 204. See also Nominal Defendant v Andrews
(1969) 121 CLR 562 and Nominal Defendant v Morgan Cars Pty Ltd (1974)
131 CLR 22, which indicate that a term in an agreement, where a breach
would result in the termination of that agreement, might not be conclusive in
establishing the requisite title to sue: compare Union Transport Finance Ltd v
British Car Auctions Ltd [1978] 2 All ER 385.

5.34 Special rules apply in actions between bailor and bailee. A bailee is
estopped from disputing the bailor’s title except if:
the bailee defends the action on behalf of, and by the authority of, the
true owner; or
the acts of conversion complained of were committed under the
authority of the true owner; or
satisfaction to the true owner has been made by return of the property.
 In Perpetual Trustees & National Executors of Tasmania Ltd v Perkins
(1989) Aust Torts Reports ¶80-295, sisters inherited portraits of their great-
grandmother and great-grandfather

[page 88]

from their parents. They passed the portraits to a brother, Bill Perkins, on
‘long loan’, that is, under a bailment revocable at their will as bailors. Bill
Perkins then passed them on to another brother. When that brother died, his
widow and son disposed of the portraits by sale to the Art Gallery of South
Australia. One of the sisters, who was an executor of the other sister’s estate,
demanded the return of the portraits from the defendant gallery and, when
the gallery refused, they sued in conversion. The Full Court of the Supreme
Court of Tasmania held that the gallery was guilty of conversion, as the
bailors’ title to the portraits was better than the defendant’s title. Green CJ
(with whom Wright J agreed on this point) said (at 69,203):
In my view, the only conclusion reasonably open on the evidence is that Bill Perkins received
possession of the portraits from the sisters upon the understanding that he would keep them
and return them according to their directions. In my opinion such a transaction has all the
essential characteristics of a gratuitous bailment … As this was a gratuitous bailment revocable
at will the transfer of possession by the sisters to Bill Perkins did not have the effect of
extinguishing their possessory title … The [defendants] were not able to impeach that title by
showing that they had a superior right to possession and they may not rely upon any rights
arising from their possession of the portraits which they derived from Bill Perkins …

5.35 It is possible in some cases for both the bailor at will, having an
immediate right to possession, and the bailee, being in possession, to have
title to sue where a third party interferes with the bailee’s possession of the
goods. In such cases, the party with the better title would be the appropriate
plaintiff.

Co-owners
5.36 If the converted goods are co-owned as either joint tenants or tenants
in common, usually all co-owners must be joined as plaintiffs.
An interference with the jointly owned goods by one co-owner will not
give rise to an action in conversion by the others unless the goods are
destroyed or there is a complete extinction of possessory rights. In Parr v Ash
(1876) SCR (NSW) 352 at 355, it was stated:
… where one joint or part owner of chattel property seized the joint property, and deprived the
other owner or owners of the use and possession of it, no action will lie except where the
property was sold in market overt or where it was destroyed so that the part owner could not
recover his share.

Occupiers of land
5.37 An occupier of land is regarded as the possessor of chattels attached
to or under the land, even if they are not aware of the existence of the chattels:
Elwes v Brigg Gas Co (1886) 33 Ch D 562; see Chairman, National Crime
Authority v Flack (1998) 156 ALR 501, where it was held that the possession
in law of residential premises was sufficient to establish the requisite intention
to possess all chattels on the premises. In that case, the respondent asked that
a briefcase containing $433,000 taken by the appellant during a search of her
premises, even though she was not its owner and had not seen it before it was
discovered during the search.

[page 89]

Finders
5.38 As noted in 5.14, a finder of goods obtains possessory rights against
all except the true owner and, in certain circumstances, their employer or the
occupier of the land. If the finder entrusts the goods to another pending an
(unsuccessful) attempt to locate the true owner, they will have sufficient
interest to sue the person entrusted with the goods when such person refuses
to return them to the finder. In Armory v Delamirie (1722) 1 Stra 505; 93 ER
664, the court held that the plaintiff, as finder, had acquired possessory title in
the jewel that had not been impaired by the temporary possession of the
jeweller.
In Parker v British Airways Board [1982] QB 1004, the English Court of
Appeal upheld the verdict of conversion in favour of the plaintiff finder. The
plaintiff, in taking the chattel into his care and control, acquired rights of
possession except against the true owner. These rights of possession could
only be displaced if the defendant, as occupier, could show an obvious
intention to exercise control over the area and the goods before the plaintiff
found the goods.

Repugnant Dealing
5.39 The tort of conversion encompasses a wide range of direct
interferences, but, as Dixon J stated in Penfolds Wines Pty Ltd v Elliott (1946)
74 CLR 204 at 229, ‘the essence of conversion is a dealing with a chattel in a
manner repugnant to the immediate right of possession of the person who
has property or special property in the chattel’. In Bunnings Group Ltd v
CHEP Australia Ltd (2011) 82 NSWLR 420 at [124], Allsop P observed:
The framing of a precise definition of the tort of conversion has been described as “well nigh
impossible”: Lord Nicholls of Birkenhead in Kuwait Airways Corporation v Iraqi Airways Co
(Nos 4 and 5) [2002] UKHL 19; [2002] 2 AC 883 at 1084 [39]; and see also Hiort v London &
North Western Railway Co (1879) 4 Ex D 188 at 194 per Bramwell LJ. The essential elements, or
basic features, involve an intentional act or dealing with goods inconsistent with or repugnant to
the rights of the owner, including possession and any right to possession. Such an act or dealing
will amount to such an infringement of the possessory or proprietary rights of the owner if it is
an intended act of dominion or assertion of rights over the goods: see generally Penfolds Wines
Pty Ltd v Elliott (1946) 74 CLR 204 at 217–220 (per Latham CJ), 228–230 (per Dixon J, with
whose statements of principle Starke J agreed at 221), 234–235 (per McTiernan J), and 239–244
(per Williams J); and Kuwait Airways at 1084 [39]–[42] (per Lord Nicholls of Birkenhead), 1104
[119] (per Lord Steyn) and 1106 [129] (per Lord Hoffmann).

The defendant need not be in physical possession of the goods, they merely
have to have dealt with the goods: Hiort v Bott (1847) LR 9 Ex 86.
 See also Maynegrain Pty Ltd v Compafina Bank [1984] 1 NSWLR 258 at
264.

5.40 In contrast to trespass to chattels, conversion requires an intention on

the part of the defendant to assert rights in respect of the goods, interfering
with the plaintiff’s immediate right of possession: Oakley v Lyster [1931] 1 KB
148 at 150; Lancashire Railway Co v MacNicoll (1919) 88 LJKB 601.
Therefore, a dealing with goods without the intention to exercise dominion
over the goods cannot amount to a repugnant dealing, instead an action in
trespass to chattels may lie. For example, in Fouldes v Willoughby (1841) 8 M
& W 540; 151 ER 1153, the plaintiff took two of his horses onto the
defendant’s ferry and paid for

[page 90]

their carriage. There was an altercation between the plaintiff and defendant in
which the defendant said he would not carry the horses and requested that
the plaintiff remove them. The plaintiff refused. The defendant then took the
horses ashore himself and left them where they subsequently ran loose on the
road. The plaintiff remained on the ferry, took the journey and later
recovered his horses. As there was no intention to exercise dominion over the
chattels (the horses), there was no conversion, merely trespass to chattels.
Similarly, in Schemmell v Pomeroy (1989) 50 SASR 450, the illegal taking of a
motor vehicle was treated as trespass rather than conversion.
In some circumstances, such an intention may be imputed to the
tortfeasor: Moorgate Mercantile Co Ltd v Finch & Read [1962] 1 QB 701.

Wrongful destruction or alteration

5.41 A person commits conversion if, without lawful justification, there is
wilful destruction or alteration of a chattel belonging to another, for example
a miller grinding another’s corn to make flour: Hollins v Fowler (1875) LR 7
HL 757.

Wrongful taking
5.42 It is conversion if a chattel is taken out of the possession of another
with intent to exercise a permanent or temporary dominion over it: Healing
(Sales) Pty Ltd v Inglis Electrix Pty Ltd (1968) 121 CLR 584.
In Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 and 5) [2002] 2
AC 883; 3 All ER 209, 10 aircraft belonging to the plaintiff were taken from
Kuwait by invading Iraqi forces. The aircraft were then incorporated into the
defendant’s fleet, four later being destroyed by Allied bombs. The remaining
six aircraft were sent to Iraq until their eventual return to the plaintiff. The
plaintiff sued in conversion to recover for the loss of use of the aircraft and
the US$20 million it had to pay Iran for the planes’ safekeeping. Due to the
application of state immunity for the period in which the planes were actually
taken, the plaintiff had to rely on the defendant’s acts of registering and
insuring the aircraft, repainting them and occasionally flying them as the acts
of conversion. The defendant argued that as it had not disposed of or
destroyed the planes, or interfered with the plaintiff’s possessory rights in any
other way, there was no conversion. The House of Lords held that the acts of
the defendant were more than mere use or minor interferences and
amounted to an assertion of rights inconsistent with the plaintiff’s rights as
owner. Despite the defendant’s assertions, there was a clear indication that it
would resist any claim by the plaintiff to exercise its rights.

5.43 Where possession of goods is thrust upon a person without consent

(an involuntary bailee), the person has merely received them and not taken
them. In such circumstances, there is no conversion and no need to take any
active steps to return them. However, it may be a conversion if the innocent
receiver then converts them to his or her own use. This is one of the most
difficult areas for the courts since they must exercise their discretion in
determining whether, as a matter of degree, there has or has not been an
intention to exercise the necessary dominion.

[page 91]

Wrongful delivery
5.44 If a person who has obtained possession of a chattel lawfully transfers
the custody of the chattel to a person who has no authority to receive them, a
conversion may be committed. For example, in Glass v Hollander (1935) 35
SR (NSW) 304, Mrs Gibson had hired goods under a hire–purchase
agreement from the plaintiff. The agreement required her to keep the goods
at the nominated address and to not sell or part with possession without the
plaintiff’s written consent. There was also the usual hire–purchase clause
giving the owner the right to repossess the goods upon failure of prompt
payment of instalments or breach of any other term of the agreement. Mrs
Gibson was in arrears of her payments when she sold the goods to the
defendant (in breach of the hire–purchase agreement). The goods were
delivered to the defendant’s employee who stored the goods until they were
sold at auction. The New South Wales Full Court held there was a conversion.
The plaintiff had an immediate right to possession because of the breaches of
the hire–purchase agreement by Mrs Gibson. The taking of possession and
delivery for auction of the goods amounted to acts of conversion. See also Hill
v Reglon Pty Ltd [2007] NSWCA 295.

5.45 Even if the delivery is innocent, there will be a conversion, for

example if an auctioneer, on the instructions of the apparent owner and
possessor of the goods, sells and delivers the chattel to a purchaser:
Consolidated Co v Curtis & Son [1892] 1 QB 495. However, a mere agreement
to sell, without delivery, is not conversion: Australian Provincial Assurance
Co Ltd v Coroneo (1938) 38 SR (NSW) 700.
5.46 If a bailee re-delivers goods to the person from whom they were
obtained, there is no conversion if the bailee was ignorant of the plaintiff’s
claim: Union Credit Bank Ltd v Mersey Docks and Harbour Board [1899] 2
QB 205. This is not the case if there is knowledge of the plaintiff’s claim:
Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204. There will be no
conversion if the bailee re-delivers the goods to a person reasonably believed
to be the agent of the sender (Elvin & Powell Ltd v Plummer Roddis Ltd
(1933) 50 TLR 158), unless the bailee does more, for example endorses the
delivery: Hiort v Bott (1874) LR 9 Ex 86.

5.47 If the defendant has possession of the goods as an involuntary bailee

(for example, as the finder of goods), there is no conversion if they misdeliver
the goods to a person whom they reasonably believe entitled to possession:
James v Oxley (1939) 61 CLR 433 at 447.

Wrongful detention
5.48 Wrongful detention of goods is a form of repugnant dealing which
overlaps with the tort of detinue: Baldwin v Cole (1704) 6 Mod Rep 212; 87
ER 964.
Mere possession or detention of goods without permission is not a
conversion: Flowfill Packaging Machines Pty Ltd v Fytore Pty Ltd (1993) Aust
Torts Reports ¶81-244 at 62,520. To amount to a repugnant dealing, the
defendant must be shown to have intended to retain the chattel in defiance of
the plaintiff. This intention is usually shown by demand and refusal: Oakley v
Lyster [1931] 1 KB 148. Possessing goods without consent is not equivalent to
a demand to return: Bunnings Group Ltd v CHEP Australia Ltd (2011) 82
NSWLR 420 at [135].

[page 92]
 In Flowfill Packaging Machines Pty Ltd v Fytore Pty Ltd, the plaintiff leased
three machines to the defendant. A provisional liquidator was appointed to
the defendant company, an event which constituted default by the defendant
of the lease, entitling the plaintiff to repossess its machines or to demand their
return within 10 days. The plaintiff did not do either of these things until after
the liquidator had refused to pay arrears of rent and had refused to permit the
plaintiff to collect the machines, claiming they were frozen by the liquidation.
The plaintiff then terminated the lease formally and demanded the return of
the machines. The plaintiff and the liquidator negotiated the amounts owing
under the lease, but negotiations were not concluded. The liquidator did not
return the machines. The plaintiff sued the defendant and the liquidator,
alleging conversion.
The Supreme Court of New South Wales held that there had been
conversion from the date of the formal termination of the lease. Young J said
(at 62,520–1):
The cases show that the mere detention by A of B’s goods will not necessarily amount to
conversion nor will the mere handling of them. But once the degree of use amounts to
employing the goods as if they were one’s own then a conversion is established. It seems to me
then that immediately after [the date of formal termination] the position was that the
defendant’s lease of the goods had been determined and the defendant’s right to possession of
the goods had ceased. The plaintiff had the right to possession of the goods. The plaintiff had
clearly manifested to the defendant that it wished to have the goods. The defendant did nothing
to change its attitude that the goods were frozen by virtue of the provisional liquidation and that
the plaintiff should do nothing to attempt to regain them … It would seem to me that at the very
least on [the date negotiations broke down] there was a conversion of the plaintiff’s goods
because the defendant was treating the goods as if they were its own. There had been a demand
for the goods … there was clear indication by the plaintiff that it wanted its goods returned and
a demand followed by a refusal to restore goods usually amounts to a conversion itself.

5.49 A provisional refusal is justifiable where there is doubt concerning the

plaintiff’s title to possession, but it is not justifiable if there is no doubt, as
illustrated by Flowfill Packaging Machines Pty Ltd v Fytore Pty Ltd where
Young J held (at 62,520):
If one reads the standard torts textbooks too quickly, one might get the impression that it is
always a defence for the holder to retain the goods for a reasonable time in order to investigate
 the validity of the plaintiff’s claim. This is too wide a proposition … The “reasonable time to
investigate” rule usually has no application at all where there is no doubt of the plaintiff’s title to
the goods. If a person knowing that goods are the goods of someone else retains them, it is
completely irrelevant that a person who did not have that knowledge might reasonably have
taken a little time to establish whose goods they were.

Since the defendant knew that the goods belonged to the plaintiff, the
defence of provisional refusal was not available.
In Sadcas Pty Ltd v Business and Professional Finance Pty Ltd [2011]
NSWCA 267, the court held there was no conversion when the appellant
retained the respondent’s goods when negotiations to purchase the goods
were commenced. By negotiating to purchase, the appellant was recognising
the respondent’s rights to the goods, not denying them.
See also Bunnings Group Ltd v CHEP Australia Ltd (2011) 82 NSWLR 420
at [120], where the court held that a ‘demand for return, or making available
for collection, goods of a

[page 93]

description not capable of being identified is not one with which the failure to
comply, of itself, evidences conversion’. In that case the appellant was lawfully
in possession of some of the respondent’s goods which were identical to the
goods it was not lawfully in possession of.

Wrongful use
5.50 Any unjustified use of goods will amount to a conversion, provided
there is an intention to exercise the appropriate dominion over them:
Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204 at 218, 234, 242.
Wrongful use without destruction or alteration requires an assessment by
the court of the extent of repugnancy demonstrated by the use. The ‘joyride’
cases involving theft of a motor vehicle are illustrative of such use, although
not necessarily consistent in approach and outcome. In Schemmell v Pomeroy
(1989) 50 SASR 450, the court held that the taking of a motor vehicle for a
‘joyride’, although clearly amounting to a trespass to goods, was not
conversion as there was no intention to harm, abandon or not return it.
However, the New Zealand court in Aitken Agencies Ltd v Richardson [1967]
NZLR 65 suggested that the mere taking of a vehicle was itself a positive and
wrongful act which amounted to a 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.

5.51 In Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204, four members
of the High Court either found or assumed that conversion of the two
branded bottles had taken place. Latham CJ held that the same acts that
determined the bailment and gave Penfolds the immediate right to possession
and, therefore, title to sue, also amounted to repugnant dealings amounting
to conversion. His Honour stated (at 219):
In the present case there was not, in my opinion, a mere removal of the bottles received from the
defendant’s brother independently of any claim over them in favour of the defendant or anyone
else. There was a handling of the bottles, an actual use of them, for the purposes of the
defendant’s trade — for containing and disposing of the defendant’s wine and for the use of the
defendant’s customer, his brother. Such dealing with the bottles, under a claim of right so to deal
with them (a claim in which the defendant still persists) was inconsistent with the dominion of
the owner of the bottles and was a conversion.

Starke J (at 221) and McTiernan J (at 232) were content to assume that the
evidence supported a conversion of two of the bottles. Williams J found
positively that there had been a conversion. He said (at 243–4):
The use which the defendant made of the bottles with knowledge of the plaintiff’s title was, in
the words of Blackburn J, … “an interference with the property which would not, as against the
true owner, be justified, or at least excused, in one who came lawfully into possession of the
goods” [Hollins v Fowler (1875) LR 7 QB 616 at 766]. He was, in the words of Brett J (at 784),
“using the goods with the intent to exercise an act of ownership on his own behalf or of
someone (that is, his brother) other than the plaintiff”.

Dixon J, alone, found there was no conversion (at 229):

There is nothing in the course followed by the respondent in supplying wine to his customers
 who brought bottles to receive it involving any deprival or impairment of property in the
bottles,

[page 94]

that is of the immediate right to possession. The redelivery of the bottles to the persons who left
them could not amount to a conversion: see per Bingham J in Union Credit Bank Ltd v Mersey
Docks and Harbour Board [1899] 2 QB 205 at 215–16. The redelivery could not amount to a
conversion because, though involving a transfer of possession, its purpose was not to confer any
right over the property in the bottles, but merely to return or restore them to the person who
had left them there to be filled. Indeed if they had been withheld from that person, he could have
complained, at least theoretically, of an actionable wrong, that is unless it were done as a result
of the intervention of the true owners and upon their demand.

To fill the bottles with wine at the request of the person who brought them could not in itself be
a conversion. It was not a use of the bottles involving any exercise of dominion over them,
however transitory. There was, of course, no asportation and the older cases to the effect that an
asportation of chattels for the use of the person taking them, or of a third person, may amount
to a conversion can have no application. In any event, an intention cannot be imputed to the
respondent of taking to himself the property in the bottles or of depriving the appellants thereof
or of asserting any title therein or of denying that of the appellants. It was not an act derogating
from the proprietary right of the appellant. 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.

5.52 In Bunnings Group Ltd v CHEP Australia Ltd (2011) 82 NSWLR 420,
the respondent sued in conversion alleging that the appellant had detained
and used its pallets, characterising the acts as acts of dominion over the
pallets, repugnant to the respondent’s rights as owner. The evidence was
goods would be delivered to the appellant in the respondent’s pallets. The
respondent and supplier of the goods were in a contractual relationship
where the pallets were hired out and until the pallets were returned to the
respondent, the supplier remained liable for the hire charge. Therefore, the
pallets were in the appellant’s possession as part of usual commercial practice
— stock would be delivered to the appellant in the pallets and the pallets
could be used to store the goods until required or used to display the goods
for sale. The appellant also used the respondent’s pallets to deliver imported
goods from the distribution centres to the stores. The court held that using
the respondent’s pallets to display goods for sale, to store goods not
immediately needed and/or transporting surplus stock still on the pallets were
not acts repugnant to the respondent’s rights of ownership or possession.
However, palletising and delivering imported goods to stores was an act
which could be characterised as ‘an act of dominion or right to use the goods
as one’s own’: at [161]. Once the pallets were unloaded, any use thereafter
ceased to be mere possession; the use was for the appellant’s own use.
See also Gwinnett v Day [2012] SASC 43, where the taking of cattle by one
co-owner was held not to be a conversion as the partnership was in the
process of being dissolved and there was no evidence that those particular
cattle had to be returned to the other co-owner.

Wrongful disposition (sale and delivery)

5.53 If, without lawful justification, a person deprives another of goods by
giving a third party lawful title to them, there will be a conversion: Douglas
Valley Finance Co Ltd v S Hughes (Hirers) Ltd [1969] 1 QB 738. The plaintiff
would be entitled to sue both the vendor and purchaser of the goods:
Moorgate Mercantile Co Ltd v Twitchings [1977] AC 890.

[page 95]

This is because conversion is proven upon there being an intention to affect

the title of the goods through wrongful interference. Therefore, a purchaser
will be liable in conversion even if acting in good faith in ignorance of the
rights of the true owner: Hollins v Fowler (1875) LR 7 HL 757; Oakley v Lyster
[1931] 1 KB 148; R H Willis & Son v British Car Auctions Ltd [1978] 2 All ER
392; Rosecell Pty Ltd v JP Haines Plumbing Pty Ltd [2015] NSWSC 1238 at
[40]. The vendor will have converted the goods even if they never had
possession but merely dealt with the title of the goods: Motor Dealers Credit
Corporation Ltd v Overland (Sydney) Ltd (1931) 31 SR (NSW) 516.
Some legislation protects a purchaser of good faith in certain
circumstances: see, for example, Sale of Goods Act 1954 (ACT) s 29(2); Sale
of Goods Act 1923 (NSW) s 28(2); Sale of Goods Act 1954 (NT) s 28(2); Sale
of Goods Act 1896 (Qld) s 27(2); Sale of Goods Act 1895 (SA) s 25(2); Sale of
Goods Act 1896 (Tas) s 30(2); Goods Act 1958 (Vic) s 31; Sale of Goods Act
1895 (WA) s 25(2).

Representations of possession
5.54 If a person falsely represents that goods are in their possession and
the plaintiff has acted on that representation to his or her loss, the representor
may be guilty of conversion and will be estopped in an action for conversion
from alleging that dominion had, in fact, never been exercised over the goods:
Seton Laing & Co v Lafone (1887) 19 QBD 68. See also the form of estoppel in
Eastern Distributors Ltd v Goldring [1957] 2 QB 600 and Moorgate Mercantile
Co Ltd v Twitchings [1977] AC 890.

Fault
5.55 Trespass actions require that the defendant be at fault, and in proving
conversion there must be evidence of an intention on the part of the
defendant to exercise dominion over the plaintiff’s goods. Therefore, when
proving fault of the defendant in conversion, negligence will not suffice —
there must be evidence of an intentional act committed by the defendant.
Intention is assessed in relation to the intent to commit the act and requires
no wrongful motive. As such, even an innocent dealing with goods may
amount to conversion: Consolidated Co v Curtis & Son [1892] 1 QB 495. In
Hollins v Fowler (1875) LR 7 HL 757 at 790, it was stated:
The foundation for the action of conversion rests neither in the knowledge nor the intent of the
defendant. It rests upon the unwarranted interference by the defendant with the dominion over
the property of the plaintiff from which injury to the latter results. Therefore neither good nor
 bad faith, neither care nor negligence, neither knowledge nor ignorance, are the gist of the
action.

4 Detinue
5.56 The trespass action of detinue involves the wrongful detention of
goods and is usually characterised by a demand for the return of the goods
and a refusal to comply. In the United Kingdom, detinue has been abolished
under the Torts (Interference with Goods) Act 1977 (UK) and such
interferences are absorbed into the action of conversion. However, in
Australia, detinue continues to be a separate tort from conversion: Banks v
Ferrari [2000] NSWSC 874 at [62].

[page 96]

5.57 The action of detinue has the following advantages over the other
trespass to personal property actions:
Detinue is the only action in which the court may order that the
defendant return the goods to the plaintiff in appropriate
circumstances. In trespass to chattels and conversion, a plaintiff can
only recover damages. In fact, for conversion, the effect of a successful
judgment in favour of the plaintiff is to transfer title to the converted
goods to the defendant.
In trespass and conversion, damages are usually assessed at the date of
interference, whereas in detinue, damages for detinue are generally
based upon the value of the goods at the date of judgment. If the value
has increased after the interference, as is usually the case through
inflation, detinue would be the preferable form of action.
Detinue may lie in some circumstances where conversion does not,
due to a lack of intention to exercise dominion over the goods, for
 example, where a bailee is unable to restore a chattel bailed owing to
negligent loss of it: Reeve v Palmer (1858) 28 LJCP 168; 141 ER 33;
Thomas v High (1960) SR (NSW) 401 at 407.

5.58 To establish an action in detinue:

the plaintiff must have title to sue;
there must be a detention of the goods; and
the defendant must be at fault.
Detinue is a continuing cause of action, commencing at the date of the
wrongful refusal to return the goods and continuing until either the goods are
delivered to the plaintiff or until judgment.

Title to Sue
5.59 To have title to sue in detinue, a plaintiff must establish that they had
an immediate right to possession or actual or constructive possession of the
chattels at the time of the defendant’s refusal to return the chattels: Russell v
Wilson (1923) 33 CLR 538; City Motors (1933) Pty Ltd v Southern Aerial
Super Service Pty Ltd (1961) 106 CLR 477.
In Wong v Maroubra Automotive Refinishers Pty Ltd [2015] NSWSC 222,
the plaintiff brought an action in detinue when the defendant refused to
return her car to her. The car had been towed by a towing company to the
defendant’s premises at the suggestion of the towing company after an
accident. When the plaintiff’s insurer arranged for the car to be towed to the
chosen repairer, the defendant refused to release the car until outstanding
payments (towing charges and storage fees) were resolved. The defendant
argued that the plaintiff had no immediate right to possession of the car as
there was a contract of bailment. The court held that there ‘was no objective
basis for concluding that the object of delivering the cars to the defendant’s
premises was to secure its services as repairer, or indeed to enter into a
contract of bailment for reward’: at [52]. As the plaintiff had dealt with the
towing company and not the defendant, there was no agreement that would
allow the defendant to retain the car. Therefore, when the formal demand was
made for the return of the car, the plaintiff did have an immediate right to
possession.

[page 97]

As in trespass to chattels and conversion, a finder of goods may have title

to sue in detinue: see 5.14 and 5.38.

Detention of Goods
5.60 The action in detinue is based upon wrongful detention (Banks v
Ferrari [2000] NSWSC 874 at [62]); therefore, the defendant must have had
the goods in their possession at some time, though they need not be in
possession at the actual time the demand for their return is made: John F
Goulding Pty Ltd v Victorian Railways Commissioners (1932) 48 CLR 157.

5.61 Merely being in possession of another’s chattels without permission is

not a tort if there is no intention of keeping the goods in defiance of the
owner’s rights: Bunnings Group Ltd v CHEP Australia Ltd (2011) 82 NSWLR
420. However, if the goods are held under an involuntary bailment, the bailee
is under a duty to safeguard the goods. In Papathanasopoulos v Vacopoulos
[2007] NSWSC 502, the respondent sued in detinue to recover an
engagement ring or its value ($15,250) from the appellant, his former fiancée.
It was held that, after the engagement ended, the appellant became a bailee
and she had no right to dispose of the ring (her father had thrown the ring
away on the daughter’s instructions to remove all mementos of her
relationship with the respondent). Judgment was given for the value of the
engagement ring. In Rolfe v Investec Bank (Aust) Ltd [2014] VSCA 38, the
appellant argued that the respondent was the bailee of the contents of locked
containers (three rare Porsches) that were on the land that the respondent
bought from the appellant. It was later discovered that the containers had
been removed at some stage after the respondent had taken possession of the
land. The court held that:
… even in cases where permission to leave chattels on land for the time being amounts to
bailment, the better view is that a gratuitous bailee of goods sealed in a container is not liable for
the goods as opposed to the container unless the bailee is apprised of the nature and value of the
goods (Moukataff v British Overseas Airways Corporation [1967] 1 Lloyds Rep 396 at 415–416)
or unless the goods are of a character, value and quantity likely to be found in a normal situation
of the kind in question: at [62].

Demand and refusal

5.62 The detention of goods is evidenced by a demand and refusal. The
plaintiff must show that a demand for the return of the chattel has been made
and that the demand has been refused by the party in possession: John F
Goulding Pty Ltd v Victorian Railway Commissioners (1932) 48 CLR 157.

5.63 Demand The demand must be specific; however, the demand will be
construed with reference to the understanding of a reasonable person in the
position of the defendant: Grant v YYH Holdings Pty Ltd [2012] NSWCA 360
at [90]. A demand which is insufficient for detinue may be sufficient when
refusal amounts to evidence of conversion.
If it is made in general terms (for example, failing to indicate a time and
place for delivery), it would be difficult to prove refusal if the defendant did
nothing in response.

[page 98]

In Lloyd v Osborne (1899) 20 LR (NSW) 190, the plaintiff owned some

sheep which the defendant came into possession of. The plaintiff consulted
her solicitors who wrote to the defendant in the following terms:
 Dear Sir — I am instructed by Mrs Catherine Lloyd, of Jugiong, to demand that you will at once
deliver to her or her agent all sheep branded F or FG (tar brand) which you unlawfully withhold
from her …

The plaintiff sued when there was no response from the defendant. The
plaintiff argued there had been sufficient demand and taking no notice of it
was equivalent to refusal. The Full Court held the demand was not sufficient.
It did not say where they were to be delivered or who the agent was. It would
have been sufficient if the letter had said, ‘You must deliver the sheep to the
bearer of this letter’ and the bearer had personally demanded the sheep.
In Flowfill Packaging Machines Pty Ltd v Fytore Pty Ltd (1993) Aust Torts
Reports ¶81-244, the plaintiff’s formal demand for return of machines did not
stipulate where or how the plaintiff required its possession of the machines to
be returned. After negotiations between the defendant liquidator and the
plaintiff broke down, the defendant would have allowed the machines to be
collected by the plaintiff, who knew where they were. The court held that the
plaintiff’s claim in detinue failed because the plaintiff’s demand did not state
where the machines were to be delivered and to whom, and because the
plaintiff knew where the machines were and would have been able to
repossess them without interference. However, the claim in conversion was
successful.

5.64 A demand for return may be conditional, but upon becoming

unconditional it may satisfy the requirements of detinue. In Bunnings Group
Ltd v CHEP Australia Ltd (2011) 82 NSWLR 420, the communication
between the appellant and respondent made it clear that if the appellant did
not enter into a hire agreement in respect of the respondent’s goods by a
specified date, the goods were to be returned. The Court of Appeal held that it
was not until negotiation between the parties ended that there was an
operative demand for the return of the goods: at [97].

5.65 In Crowther v Australian Guarantee Corporation Ltd (1985) Aust

Torts Reports ¶80-709, it was suggested that if the defendant has clearly
demonstrated an intention not to return the goods, then a demand may not
be required. It was stated (at 69,102):
It is not an immutable rule that there must be a demand for and a refusal of the return of the
goods, before an action in detinue or conversion will lie. A man may demonstrate that he
intends not to deliver up the goods come what may. If that intent is proved, absence of demand
will not defeat the plaintiff’s claim.

5.66 Refusal The refusal to return the goods must be unqualified and
unreasonable. If the defendant merely requests time to consider the claim
made in the demand, reasonable time to confirm the authenticity of the
claimant’s rights is recognised since handing them over to a wrongful
claimant may render the person liable in conversion to the true owner.

5.67 A defendant may not be able to rely on inaction in an attempt to

argue that there was no refusal. In Lloyd v Osborne (1899) 20 LR (NSW) 190,
it was observed that

[page 99]

in some circumstances taking no notice of a sufficient demand may be

equivalent to a refusal.

5.68 If the defendant no longer has possession of the goods and, therefore,
cannot comply with the demand for the return of the goods, an action in
detinue may still lie. For example, in John F Goulding Pty Ltd v Victorian
Railways Commissioners (1932) 48 CLR 157, the loss of the goods by the
defendant was unintentional but the refusal to deliver them was intentional,
in the sense that it was a deliberate and conscious refusal. The defendant had
no choice but to refuse as the goods had disappeared.

Fault
5.69 To be liable the detention must arise through the fault of the
defendant. The defendant will escape liability if it can be shown that either the
interference was unintentional or there was no lack of care: Houghland v R R
Low (Luxury Coaches) Ltd [1962] 2 All ER 159. As to how a detention may
arise through negligence, in John F Goulding Pty Ltd v Victorian Railways
Commissioners (1932) 48 CLR 157, the High Court held that by delivering the
plaintiff’s goods to a third party not entitled to them, the defendant had been
negligent and was liable in detinue.

5 Innominate Tort by Reversionary

Owners
5.70 An owner of chattels who does not have title to sue in trespass,
conversion or detinue because neither possession nor an immediate right to
possession is held, may sue in an innominate action on the case (see 2.25) for
what amounts to a conversion or trespass, provided the reversionary interest
is affected, for example, by some permanent damage to the goods: Mears v
London & South Western Railway Co (1862) 11 CBNS 850; 142 ER 1029;
referred to in Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204 at 230–1 per
Dixon J; Dee Trading Co Pty Ltd v Baldwin [1938] VLR 173. It is arguable that
the reversioner must wait until the interest is no longer reversionary. The
damages are limited to the value of the interest: Penfolds Wines Pty Ltd v
Elliott (1946) 74 CLR 204.

6 Remedies
5.71 The remedies available for the trespass to personal property actions
have different aspects. Certain remedies are available to all three, but may
involve different principles, for example the assessment of damages.
Therefore, when an interference with goods gives rise to more than one
possible trespass action, the available remedies may be relevant in the
decision as to the course of action taken.

Self-help
5.72 Although an owner is entitled to exercise self-help to retake a chattel
from a person unlawfully in possession, it is not encouraged as it may render
the person seeking to recapture the chattel liable in trespass to person or land,
or to criminal prosecution in

[page 100]

attempting to recapture it if unreasonable force is used. The following

principles apply generally to all three of the actions:
A plaintiff can retake a chattel from a trespasser using reasonable force
short of bodily harm. Older authority suggests that force is not justified
unless reasonable attempts have been made to regain peaceably: Blades
v Higgs (1861) 10 CBNS 713 at 720; 142 ER 634.
The right to retake possession may extend to entry onto land of the
actual wrongdoer or another who has helped or is aware of the
wrongdoing: Huet v Lawrence [1948] St R Qd 168.
In Queensland, ss 274–276 of the Criminal Code (Qld) provide that
reasonable force may be used to retake goods, provided no bodily harm
occurs. As the Code defences apply in Queensland to civil actions of assault
and battery, these provisions would provide a defence to such civil actions.

Damages
5.73 In trespass actions involving personal property, a plaintiff need not
prove damage in order to succeed. Therefore, if no loss is suffered by the
plaintiff, nominal damages may be recovered: Kirk v Gregory (1876) 1 Ex D
55; Slaveski v Victoria [2010] VSC 441.
If loss has been suffered, the award of damages will depend upon which
trespass action is pursued, the damage to the goods and the consequential
loss, and the plaintiff’s interest in the goods. As noted by the Zeeman J of the
Tasmanian Supreme Court, ‘a distinction must be drawn between the
categories of damages which may be recovered in respect of a particular cause
of action and the principles according to which damages of a particular
category are to be assessed’: Pargiter v Alexander (1995) 5 Tas R 158 at 160.

5.74 The plaintiff can only recover damages to the extent of their own
interest in the goods. If the defendant has an interest in the goods, the
plaintiff may only recover an amount proportionate to his or her own interest
in the goods: Brierley v Kendall (1852) 17 QB 937 (trespass to chattels);
Belvoir Finance Co Ltd v Stapleton [1971] 1 QB 210 (conversion). As
possession of the goods provides title to sue, a bailee may recover damages as
if they were the true owner but is then accountable to the owner for what is
received in excess of their own interest.

5.75 If the goods are damaged or destroyed, a plaintiff is entitled to

compensatory damages: Australia and New Zealand Banking Group Ltd v
Hunter BNZ Finance Ltd [1991] 2 VR 407 at 409. In Semenov v Pirvu [2011]
VSC 605 at [19], Dixon J said:
The general rule, where a plaintiff has been permanently deprived of goods, is that the measure
of damages, whether in conversion, detinue or trespass, is the value of the property converted,
together with any consequential loss that may be proved by the plaintiff. [footnote omitted]

5.76 It is possible to claim exemplary or aggravated damages in the

appropriate circumstances. In Pargiter v Alexander (1995) 5 Tas R 158,
exemplary damages were awarded to ‘mark the Court’s strong disapprobation
of the defendant’s outrageous conduct’: at 168. The defendant’s conduct was
considered ‘outrageous’ as a previous judgment had
 [page 101]

vindicated the plaintiff’s rights to the goods, a yacht, and then the defendant
took the yacht a second time and took steps to attempt to deprive the plaintiff
of the yacht permanently. See also Healing (Sales) Pty Ltd v Inglis Electrix Pty
Ltd (1968) 121 CLR 584; Hunter BNZ Finance Ltd v ANZ Banking Group Ltd
[1990] VR 41.
In Moore v Lambeth County Court Registrar (No 2) [1970] 1 QB 560, the
court awarded aggravated damages to the plaintiff, who had been wrongfully
dispossessed of his goods, to compensate him for the resultant injury to his
feelings. See also Private Parking Services (Vic) Pty Ltd v Huggard (1996) Aust
Torts Reports ¶81-397, where aggravated damages were considered
appropriate as the respondent had felt a sense of invasion when his car, which
had his mobile phone and work diary in it, was clamped and towed away.

Trespass to chattels
5.77 An examination of the cases leads to the conclusion that, in practice,
the action of trespass to chattels is usually brought only when an actual loss is
suffered. However, in Slaveski v Victoria [2010] VSC 441, the plaintiff sought
damages for trespass to chattels — police officers had handled documents and
transcribed from them. The documents were not removed from the plaintiff’s
premises nor damaged in any way. It was held that a trespass had been
committed; however, there was no damage and nominal damages of $1100
were awarded.

5.78 A plaintiff who is permanently deprived of their goods is entitled to

recover their full value as at the date of the trespass: Australia and New
Zealand Banking Group Ltd v Hunter BNZ Finance Ltd [1991] 2 VR 407 at
409.
5.79 A plaintiff who is in possession of their goods, but they are damaged
due to the trespass, may claim compensatory damages. The prima facie rule is
that damages are measured by the depreciation in value of the chattel, which
is usually assessed based upon the reasonable cost of repairs if it is reasonable
in the circumstances to effect repair: Pargiter v Alexander (1995) 5 Tas R 158
at 161 and 164; Davidson v J S Gilbert Fabrications Pty Ltd [1986] 1 Qd R 1.
However, as the aim of compensatory damages is to place the plaintiff in the
position as if no tort was committed (Butler v Egg and Egg Pulp Marketing
Board (1966) 114 CLR 185), the plaintiff may provide evidence that they have
sustained a loss going beyond that measure in the form of diminution of
market value of the chattel: Davidson v J S Gilbert Fabrications Pty Ltd [1986]
1 Qd R 1.

5.80 A plaintiff may sell the goods without repairing and then claim as
damages the difference between the pre- and post-damage values of the
goods. If this option is taken, the pre-damage value must be established and
that the best price was obtained for the damaged chattel: see Davidson v J S
Gilbert Fabrications Pty Ltd [1986] 1 Qd R 1.

5.81 Foreseeable consequential loss is recoverable; for example, if the

damaged chattel was a profit-earning chattel, the plaintiff is entitled to the
lost profits flowing from the trespass as well as during any period of repair.
Likewise, if the plaintiff hires a substitute, the cost of that hire is recoverable:
Bodley v Reynolds (1846) 8 QB 779; 115 ER 1066.

5.82 A plaintiff may recover for the non-economic loss, such as the loss of
the use and enjoyment of the chattel: Private Parking Services (Vic) Pty Ltd v
Huggard (1996) Aust

[page 102]
Torts Reports ¶81-397 (plaintiff had fondness for his car which was an
uncommon model and he used in rallies and competitions). However, the
non-economic loss must relate to the trespass. In Pargiter v Alexander (1995)
5 Tas R 158, the claim for damages for the loss of use and enjoyment of the
yacht, from the time the yacht was wrongfully taken until it was repaired, was
not allowed. It was held that such damages were a result of the detention of
the yacht and, therefore, not recoverable in trespass but rather in detinue.

Conversion
5.83 A plaintiff who successfully sues in conversion is awarded the market
value of the goods as compensatory damages. This effectively enforces a
purchase of the converted goods by the defendant who then receives title to
the goods. However, if the plaintiff has regained possession of the goods,
‘credit must be given for their then value, so the damages are the diminution
in value between the conversion and the return’: Sadcas Pty Ltd v Business
and Professional Finance Pty Ltd [2011] NSWCA 267 at [75] citing Solloway v
McLaughlin (1938) AC 247; BBMB Finance (Hong Kong) Ltd v Eda Holdings
Ltd (1990) 1 WLR 409; Trailways Transport Ltd v Thomas (1996) 2 NZLR
443. If the goods are returned undamaged, the plaintiff will be able to recover
nominal damages.

5.84 In detinue, it is clear that a defendant has the option of returning the
goods and reducing the damages awarded, primarily because it is the return
that the plaintiff has asked for. In conversion, the position with respect to the
return of the goods is not so clear. To permit unilateral return would give a
right to the wrongdoer to force the goods back on the plaintiff. If the plaintiff
rejects the return of the goods and continues with a claim for damages
assessed on the basis of a forced sale to the wrongdoer, courts may be
reluctant to accord the wrongdoer a right of return: Craig v Marsh (1935) 35
SR (NSW) 323 at 329.

5.85 The value of the converted goods is generally assessed at the date of
the conversion: Chabbra Corporation Pty Ltd v Jag Shakti (Owners) [1986]
AC 337; 1 All ER 480 (Jag Shakti); BBMB Finance (Hong Kong) Ltd v Eda
Holdings Ltd [1991] 2 All ER 129. The value of the goods can be either the
purchase price of such goods in the market or the selling price.
The onus of proving the market value of the converted goods is upon the
plaintiff. In Jag Shakti, shipowners wrongfully converted the plaintiffs’ goods
by delivering to buyers. Before the Privy Council, the shipowners conceded
that the plaintiffs were entitled to damages for conversion but the quantum
remained in dispute. The proper damages were the full market value at the
time and place of conversion, but the plaintiffs failed to adduce reliable
evidence of market value. Therefore, despite the acknowledgment that, at the
date of conversion, the cargo price would have been higher than the original
price paid, the court awarded the original contract price.

5.86 However, the date of the conversion may not always be an indication
of the plaintiff’s actual loss and that is the underlying basis for compensation.
In Butler v Egg and Egg Pulp Marketing Board (1966) 114 CLR 185 at 192,
Menzies J stated:
There is no hard and fast rule that the value of the goods at the time of a conversion is always
the measure of the damages to be assessed for the conversion. Often the application of such a
rule would produce an obviously unjust result — for example, if goods converted by a defendant
had

[page 103]

since been recovered by the plaintiff-owner. The true rule is, I think, that stated by Bramwell B
in Chinery v Viall (1860) 5 H & N 288; 157 ER 1192, viz that the plaintiff is entitled to recover no
more than the real damage he has sustained.

See also Sachs v Miklos [1948] 2 KB 23; Munro v Willmott [1949] 1 KB 295.
In IBL Ltd v Coussens [1991] 2 All ER 133, the Court of Appeal confirmed
that damages for conversion should not be arbitrarily assessed as at either the
date of conversion or at the date of judgment. Rather, it is more appropriate
to assess the damages at a date which fairly compensated the owner for the
loss of the goods, taking into account such matters as whether the owner
would have kept the goods, whether they would have been sold or replaced,
whether they had increased in value and whether there had been damage
from loss of use.

5.87 If the value of the goods has increased after the conversion, the
plaintiff should be entitled to recover this increased value if the plaintiff
neither knew nor ought to have known of the conversion before commencing
the action: Sachs v Miklos [1948] 2 KB 23. In Graham v Voigt (1989) Aust
Torts Reports ¶80-296, it was held that the plaintiff was entitled to the
increased value of the goods as the increase was not due to any act of the
defendant but was a natural consequence of the type of goods (collection of
stamps). On the basis of the principle that damages in tort are to compensate
and not to profit, a plaintiff may not recover as damages for conversion any
increase in value brought about by the defendant: Munro v Willmott [1949] 1
KB 295. If the goods have fallen in value since the date of conversion, their
value at the date of conversion may be recovered unless there was undue
delay in bringing the action: Solloway v McLaughlin [1938] AC 247.

5.88 In the case of conversion of a cheque, damages are prima facie the
face value of the cheque at the time of conversion: Associated Midland
Corporation Ltd v Bank of New South Wales [1983] 1 NSWLR 533. Where
there are successive converters, for example, the original depositor and the
bank which credits the account, payments deliberately made by one to
discharge liability to the true owner may be taken into account in considering
the entitlement in an action for conversion against another tortfeasor. Such
payment may reduce damages or even extinguish the cause: confirmed in
Hunter BNZ Finance Ltd v ANZ Banking Group Ltd [1990] VR 41.

5.89 Where a plaintiff in possession has only a limited interest, but the
defendant has no interest, full value may be recovered by the plaintiff: The
Winkfield [1902] P 42. There may then need to be an account to any other
party with an interest for any award above the plaintiff’s limited interest;
however, this need to account does not affect the defendant’s liability:
Chabbra Corporation Pty Ltd v Jag Shakti (Owners) [1986] AC 337; 1 All ER
480.
A bailor under a hire–purchase agreement is only entitled to recover the
value of the chattel less any instalments paid: Belsize Motor Supply Co v Cox
[1914] 1 KB 244; Wickham Holdings Ltd v Brooke House Motors Ltd [1967] 1
WLR 295; Western Credits Pty Ltd v Dragan Motors Pty Ltd [1973] WAR 184.
Conversely, where a bailor owner wrongfully seizes goods from a bailee hirer,
the usual damages will be the value of the goods less the unpaid instalments:
City Motors (1933) Pty Ltd v Southern Aerial Super Service Pty Ltd (1961) 106
CLR 477.

[page 104]

An unpaid vendor who wrongfully disposes of the goods is entitled to

deduct from the damages payable to the purchaser the price which the
purchaser is no longer liable to pay, unless the purchaser is not relieved from
payment of the purchase price: Healing (Sales) Pty Ltd v Inglis Electrix Pty Ltd
(1968) 121 CLR 584.

5.90 A plaintiff is entitled to recover all foreseeable consequential loss

resulting from the conversion: General and Finance Facilities Ltd v Cook’s
Cars (Romford) Ltd [1963] 1 WLR 644. Therefore, for the conversion of a
profit-earning chattel, such items as loss of profits (Strand Electric and
Engineering Co Ltd v Brisford Entertainments Ltd [1952] 2 QB 246) and other
reasonable associated costs may be awarded. In Hillesden Securities Ltd v
Ryjack Ltd [1983] 1 WLR 959, there was a three-year lease of a Rolls Royce
which the hirer purported to sell to a director/shareholder of a company.
Both he and the company used the car jointly. The true owner sold his rights
to the plaintiff who sued the defendants. The director admitted conversion
but argued that, at common law, his liability was limited to the value of the
chattel at the date of conversion, plus interest. It was held that consequential
damages were always recoverable for conversion, if not too remote, in cases
where the goods had been detained and used and they were earning profit,
that is, a hire charge by way of damages together with its value or return. Both
defendants were held liable for full hire charge until the return of the Rolls
Royce. See also Gaba Formwork Contractors Pty Ltd v Turner Corporation Ltd
(1991) 32 NSWLR 175; Flowfill Packaging Machines Pty Ltd v Fytore Pty Ltd
(1993) Aust Torts Rep ¶81-244.

Detinue
5.91 As the tort of detinue is concerned with the wrongful detention of
goods, damages will be awarded for the wrongful detention. The tort arises
upon the wrongful refusal to return the goods (Premier Group Pty Ltd v
Followmont Transport Pty Ltd [2000] 2 Qd R 338 at 344), and therefore
damages for wrongful detention are assessed from the time of refusal until the
date of judgment: General and Finance Facilities Ltd v Cook’s Cars (Romford)
Ltd [1963] 1 WLR 644; Palace Backpackers Australia Pty Ltd v Christensen
Industries Pty Ltd (2002) 23 Qld Lawyer Reps 79; QDC 084 at [20]–[21].

5.92 If the goods are ordinary articles in commerce and have not been
returned to the plaintiff by the time of judgment, compensatory damages are
awarded — assessed as the value of the chattel at the date of judgment
(Brandeis Goldschmidt & Co Ltd v Western Transport Co Ltd [1981] QB 864)
plus damages for its detention.

5.93 It is no more than a prima facie presumption that the damages be

assessed according to the value of the goods as at the date of judgment,
because the overriding principle is to compensate for the loss actually
suffered: Admiralty Commissioners v Susquehanna (Owners) [1926] AC 655.
Where a defendant refuses to produce the goods in order to determine their
value, the courts have long taken the view that they may assess damages on
the basis that the goods are of the best quality: Armory v Delamirie (1722) 1
Stra 505; 93 ER 664.
A plaintiff cannot make a profit through an award of damages: Butler v Egg
and Egg Pulp Marketing Board (1966) 114 CLR 185. Under the doctrine of
accession, if an innocent third party adds value to the goods, without notice
and the accretion can be detached, the removal of the accretion can be
ordered by the court. If not, then compensation to the third

[page 105]

party may be imposed as a term of the order for repossession: see Wade
Sawmill Pty Ltd v Colenden Pty Ltd (t/as Pilks Pine) [2007] QCA 455 at [24];
McKeown v Cavalier Yachts Pty Ltd (1988) 13 NSWLR 303 at 312–13 (where
the defendant built a yacht incorporating a hull owned by the plaintiff).

5.94 Damages that flow as a consequence of the detention of goods are

recoverable if the loss is foreseeable: Macrocom Pty Ltd v City West Centre Pty
Ltd [2003] NSWSC 898 at [45]; National Australia Bank Ltd v Nemur Varity
Pty Ltd (2002) 4 VR 252.
Therefore, the loss of profits suffered by the plaintiff during the detention
of a profit-earning chattel may be claimed: Egan v State Transport Authority
(1982) 31 SASR 481. If the detained goods are ordinarily hired out by the
plaintiff, damages are awarded for the loss of use, the measure usually being
the normal hiring rate: Gaba Formwork Contractors Pty Ltd v Turner
Corporation Ltd (1991) 32 NSWLR 175 at 178; Pargiter v Alexander (1995) 5
Tas R 158 at 161. If the defendant has detained the goods and used them, the
court may award as damages the reasonable hire charge of the goods. In
Strand Electric and Engineering Co Ltd v Brisford Entertainments Ltd [1952] 2
QB 246 at 254–5, Denning LJ stated:
 If a wrongdoer has made use of goods for his own purposes, then he must pay a reasonable hire
for them, even though the owner has in fact suffered no loss. It may be that the owner would not
have used the goods himself, or that he had a substitute readily available, which he used without
extra cost to himself. Nevertheless the owner is entitled to a reasonable hire. If the wrongdoer
had asked the owner for permission to use the goods, the owner would be entitled to ask for a
reasonable remuneration as the price of his permission. The wrongdoer cannot be better off
because he did not ask permission. He cannot be better off by doing wrong than he would be by
doing right. He must therefore pay a reasonable hire.

In Reynolds v Aluma-Lite Products Pty Ltd (2010) Aust Torts Reports ¶82-
072, the court refused to award damages as the plaintiffs could not establish
that the goods in question were normally hired out for profit or that the
defendant had used the goods for its own purposes during the detention.

5.95 It is possible to claim damages for the loss of use and enjoyment if
there are no economic interests involved: Private Parking Services (Vic) Pty
Ltd v Huggard (1996) Aust Torts Reports ¶81-397; Pargiter v Alexander
(1995) 5 Tas R 158. In Wong v Maroubra Automotive Refinishers Pty Ltd
[2015] NSWSC 222, the defendants wrongfully detained the plaintiff’s car and
the court awarded damages for the loss of the use of the vehicle in the amount
represented by the market rate of hiring a replacement car.

Injunction
5.96 The injunction is an equitable remedy, and the court must be
persuaded that the grant of an injunction is justified as an award of damages
would be inadequate to remedy the wrong in the circumstances.

Trespass to chattels
5.97 A plaintiff seeking an injunction for the trespass to their goods would
have to establish that an award of damages would be inadequate as the
interference with their possession would continue or reoccur: Penfolds Wines
Pty Ltd v Elliott (1946) 74 CLR 204.
 [page 106]

However, the court cannot order that the defendant return the goods to the
plaintiff if the plaintiff has not regained possession.

Conversion
5.98 Although a court cannot order the return of the converted goods, if
the plaintiff can prove that the defendant will continue to exercise dominion
over their goods, an injunction may be ordered. The case of Penfolds Wines
Pty Ltd v Elliott (1946) 74 CLR 204, in relation to trespass to chattels and
conversion, provides a useful illustration. The plaintiff sought an injunction
to restrain the defendant from filling its bottles with other merchants’ wine.
While a majority of four of the members of the High Court held there had
been conversion, only a minority of two was prepared to grant an injunction
because of the absence of any systematic practice of using Penfolds’ bottles
and because damages at common law were available.
Interlocutory injunctions may be granted to restrain the disposition of
goods which have no intrinsic qualities, for example a motor vehicle, if there
is a possibility of invalid title being passed to innocent third parties by further
dispositions: Gedbury Pty Ltd v Michael David Kennedy Autos [1986] 1 Qd R
103.

Detinue
5.99 As with the other actions, a plaintiff may seek an injunction if there is
the likelihood of their goods being wrongfully detained again. However, as
detinue is based upon the defendant being in possession of goods to which
the plaintiff has the right of possession, it is the only action that provides the
remedy of a court ordering the return of the goods to the plaintiff.

5.100 A plaintiff suing in detinue has the option of seeking the return of
the chattel or recovery of its value at the date of judgment and damages for its
detention: General & Finance Facilities Ltd v Cooks Cars (Romford) Ltd
[1963] 1 WLR 644; Haythorpe v Rae [1972] VR 633.

5.101 A judgment for the return of the goods is appropriate in the case of a
chattel having some intrinsic value or in being so unique that it cannot be
replaced: McKeown v Cavalier Yachts Pty Ltd (1988) 13 NSWLR 303 at 312
(yacht held to have sufficient individuality to allow an order for its return).
A court will not order the return of a chattel if it can readily be replaced in
the market, as damages are an adequate remedy: General & Finance Facilities
Ltd v Cooks Cars (Romford) Ltd; Whitely Ltd v Hilt [1918] 2 KB 808 at 819.

7 Limitation Period
5.102 For actions in tort claiming damages in respect of property, the
limitation period is six years, except in the Northern Territory where it is
three years: Limitation Act 1985 (ACT) s 11(1); Limitation Act 1969 (NSW) s
14(1)(b); Limitation Act 1981 (NT) s 12(1)(b); Limitation of Actions Act 1974
(Qld) s 10(1)(a); Limitation of Actions Act 1936

[page 107]

(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 9. See also Chapter 14.

5.103 For actions in trespass to chattels, the limitation period commences

to run at the date of the interference. In conversion, the cause of action arises
at the date the goods are converted. For actions in detinue, time runs from the
moment the defendant’s possession becomes wrongful, that is, after demand
and refusal: Ming Kuei Property Investments Pty Ltd v Hampton (1994) 126
ALR 313.
5.104 Where there is more than one wrongful act constituting conversion
or detinue (successive conversions), the cause of action is barred six years
from the date of the first act: Limitation Act 1985 (ACT) s 18; Limitation Act
1969 (NSW) s 21; Limitation Act 1981 (NT) s 19(1); Limitation of Actions
Act 1974 (Qld) s 12(1); Limitation Act 1974 (Tas) s 6(1); Limitation of
Actions Act 1958 (Vic) s 6(1); Limitation Act 2005 (WA) s 59. There is no
equivalent in South Australia. The effect of this limitation in some
jurisdictions is that the plaintiff’s title in the goods is extinguished: Limitation
Act 1981 (NT) s 19(2); Limitation of Actions Act 1974 (Qld) s 12(2);
Limitation Act 1974 (Tas) s 6(2); Limitation of Actions Act 1958 (Vic) s 6(2).
See also 14.12.

Further Reading
L Aitken, ‘The Abandonment and Recaption of Chattels’ (1994) 68 ALJ
263.
R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis
Butterworths, Sydney, 2013, Ch 4.
J Goldring, ‘The Negligence of the Plaintiff in Conversion’ (1977) 11
MULR 91.
J Tooher, ‘Jubilant Jamie and the Elephant Egg: Acquisition of Title by
Finding’ (1998) 6 APLJ 117.
[page 109]
 Chapter 6

Defences to Trespass

1 Introduction
6.1 Despite the fact that to be liable in trespass the defendant must be at
fault — that is, either committed the interference intentionally or due to lack
of care — there is a wide range of defences available. Some are of limited
application and some of practical importance.

2 Inevitable Accident
6.2 To succeed in any trespass, there is the requirement that the defendant
be at fault. If there is no fault on the part of the defendant, this may be
referred to as the defence of ‘inevitable accident’. Inevitable accident remains
a defence in Australia where trespass actions are classified as direct, unlike the
United Kingdom where intention is a necessary element for all trespasses.
Therefore, in the United Kingdom, an inevitable accident would mean that
there is no trespass due to lack of intention: Letang v Cooper [1965] 1 QB 232.

6.3 In a non-highway trespass in Australia, the defendant can raise absence

of fault as a defence, and proof of an inevitable accident will demonstrate the
absence of such fault. For example, the child defendant in McHale v Watson
(1964) 111 CLR 384 was held to have thrown the dart without intention or
negligence and, therefore, not liable in trespass. See also National Coal Board
v J E Evans & Co (Cardiff) Ltd [1951] 2 KB 861.
6.4 It may be argued that it is an inevitable accident if the interference was
the consequence of an involuntary act as there is neither intention nor lack of
care: see 2.15 and 6.65. In Public Transport Commission (New South Wales) v
Perry (1977) 137 CLR 107; 14 ALR 273, it was considered whether the
respondent had trespassed by falling unconscious onto the railway tracks
during an epileptic attack. Gibbs J explained (CLR at 133; ALR at 294):
A person who is lawfully upon premises, and is using the premises in an ordinary and
reasonable way, becomes a trespasser only if he goes voluntarily on to part of the premises to
which the invitation does not extend: if he falls, or is pushed, on to a forbidden area he does not
thereby become a trespasser.

[page 110]

3 Consent
6.5 There is some debate as to whether consent is a defence to trespass
actions or lack of consent is an element of the action.1 Whichever view is
taken, valid consent will prevent an action for trespass to land, goods or
person arising: Amess v Hanlon (1873) 4 AJR 90; Latter v Braddell (1881) 44
LT 369; McNamara v Duncan (1971) 26 ALR 584.

6.6 The consent may be express or implied. For example, there is implied
consent for the public to enter land for legitimate purposes: Halliday v Nevill
(1984) 155 CLR 1; 57 ALR 331; TCN Channel Nine Pty Ltd v Anning (2002)
54 NSWLR 333. See 4.27.

6.7 Participants in body contact sports are taken to have impliedly

consented to contact that is within the normal incidence of playing the sport:
McNamara v Duncan (1971) 26 ALR 584. However, battery may be proven if
the contact occurs outside the rules of the game: McNamara v Duncan. In
Giumelli v Johnston (1991) Aust Torts Reports ¶81-085, the plaintiff and the
defendant were in opposing teams in an Australian Rules football match. The
defendant collided with the plaintiff, who was holding the ball during open
play, using a ‘hip and shoulder’ bump, which was permitted under the rules of
the game. However, just before contact, the defendant raised his elbow in a
thrusting action into the plaintiff’s cheekbone. This was against the rules of
the game. The plaintiff sued the defendant, alleging a battery, and the
defendant argued that the plaintiff had consented to the contact by
participating in the game. The Full Court of the Supreme Court of South
Australia held that the blow constituted a battery. King CJ (with whom Mohr
and Prior JJ agreed) said (at 68,708–10):
The rules of Australian Rules Football permit bodily contact, including strong bodily contact, in
the course of the game. Those who participate in a football match are taken to consent to the
infliction on them of such physical force as is permitted by the rules of the game. It was accepted
by the [plaintiff] in evidence, moreover, that some bodily contact outside the rules of the game is
to be expected as an ordinary incident of a football match … Although a player’s consent to the
application of force to him in the course of the game extends not only to the application of force
within the rules of the game but also to certain commonly encountered infringements of the
rules … such consent cannot be taken to include physical violence applied in contravention of
the rules of the game by an opposing player who intends to cause bodily harm or knows, or
ought to know, that such harm is the likely result of actions.

See also Canterbury Bankstown Rugby League Football Club Pty Ltd v
Rogers (1993) Aust Torts Reports ¶81-246, which involved a head-high tackle,
outside the rules, in a rugby league game. The player was held liable for the
battery, as was the player’s club through vicarious liability.

6.8 To be valid consent:

the interference must be within the scope of the consent;
it must be voluntary; and
the plaintiff must have the legal capacity to give consent.

[page 111]
Scope of the Consent
6.9 If the interference exceeds the scope of, or the conditions attached to,
the consent, there is no valid consent, and the entire conduct may be
trespassory. For example, in Barker v R (1983) 153 CLR 338; 47 ALR 1, the
express consent to enter the premises was for the purpose of security, not for
the purpose of theft. See 4.25.
As for the implied licence to the public to enter premises, it is limited in
scope and is valid only in relation to legitimate purposes: Halliday v Nevill
(1984) 155 CLR 1; 57 ALR 331: see 4.27ff. Therefore, a defendant who enters
the plaintiff’s property for an illegitimate purpose is a trespasser from the
initial entry as the entrance is not within the scope of the licence: TCN
Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333; Rinsale Pty Ltd v
Australian Broadcasting Corporation (1993) Aust Torts Reports ¶81-231.
If a plaintiff has consented to a criminal act, that consent will be a valid
defence in civil proceedings, although the defendant may remain criminally
liable: Bain v Altoft [1967] Qd R 32 at 41.

Voluntary
6.10 If the consent has been obtained by fraud or duress it will not be valid
as it is not voluntary.
For fraud to negate the consent, the fraud must go to the quality of the act
consented to and not to its nature, which is merely collateral: Hegarty v Shine
(1878) 14 Cox CC 124; Smythe v Reardon [1949] St R Qd 74. In R v Williams
[1923] 1 KB 340, the defendant argued consent by the plaintiff to sexual
intercourse. However, he had gained her consent by persuading her she
required a ‘special’ surgical procedure to improve her singing voice (he was
her teacher) and therefore there was no valid consent. The plaintiff had been
induced by the fraud as to the nature of the act. In contrast, in R v
Papadimitropoulos (1957) 98 CLR 249 the High Court held that there had
been consent to sexual intercourse by the complainant, the fraud was that the
complainant had agreed in the belief that she and the defendant were
married, when they were not.

6.11 In Dean v Phung [2012] NSWCA 223, the appellant alleged that the
consent to dental treatment had been obtained by fraud as it had been
misrepresented as reasonably necessary when it was carried out to generate
income. The appellant had suffered minor damage to his front teeth in a work
accident yet the respondent undertook 12 months of treatment that involved
root canals to remove all nerves and capping every tooth. In Dean v Phung
[2011] NSWSC 653, the judge held that the treatment was incompetent but,
on the balance of probabilities, fraud had not been proved: at [29]. On appeal
the court stated that the treatments carried out were not for a therapeutic
purpose. Basten JA held ‘a procedure of the nature carried out was not
capable of addressing the patient’s condition, there can be no valid consent’:
at [63]. Macfarlan JA explained (at [94]):
… it was established that the practitioner did not perform the relevant procedures undertaken
on the appellant’s teeth for therapeutic purposes but for another purpose, presumably to
generate income for himself. … I consider this finding to be necessary for the conclusion that
the appellant did not consent to the procedures and they therefore constituted a trespass to his
person. On the basis of that finding, the appellant was not aware of the nature and character of

[page 112]

the dental acts: he believed that they constituted dental treatment that the practitioner regarded
as necessary or appropriate. In fact, when the practitioner’s state of mind is taken into account,
that was not their character. They were acts designed to generate income for the practitioner.

6.12 Consent procured by duress will be ineffective: Symes v Mahon [1922]

SASR 447 (case of false imprisonment).

Capacity to Consent
6.13 The plaintiff must be able to give valid consent. Therefore, the
plaintiff’s age may be relevant as well as their mental ability. There is no
legislation that states at what age a minor may give valid consent. In Gillick v
West Norfolk & Wisbech Area Health Authority [1986] AC 112 at 188, a case
concerning consent by a minor to medical treatment, Lord Scarman stated:
… a minor’s capacity to make his or her own decision depends upon the minor having sufficient
understanding and intelligence to make the decision and is not to be determined by reference to
any judiciary fixed age limit.

See also Secretary, Department of Health & Community Services v J W B

(Marion’s case) (1992) 175 CLR 218 at 238.
In actions of battery (see 3.10), to avoid actions for interferences that were
part of everyday life in society, it was reasoned that there was implied consent
to such contact. It was the requirement that there must be capacity to consent
that led to the abandonment of this principle. In Re F (Mental Patient:
Sterilisation) [1990] 2 AC 1 at 72, it was observed that rationalising contact
that forms part of everyday life as being ‘founded upon implied consent to
bodily contact’ was artificial, making particular reference to the difficulty in
imputing consent to minors and those suffering mental disorders.

Consent to Medical Treatment

6.14 To be valid consent to medical treatment, the same principles apply as
discussed above. In Schloendorf v Society of New York Hospital 105 NE 92
(1914) at 93, Cardozo J stated:
Every human being of adult years and sound mind has a right to determine what shall be done
with his own body; and a surgeon who performs an operation without his patient’s consent
commits an assault, for which he is liable in damages.

This has been adopted in Australia. In Secretary, Department of Health &

Community Services v J W B (Marion’s case) (1992) 175 CLR 218 at 310,
McHugh JA stated:
At common law, therefore, every surgical procedure is an assault unless it is authorised, justified
or excused by law.
6.15 Basten JA of the New South Wales Court of Appeal summarised the
law as to consent to medical treatment in Dean v Phung [2012] NSWCA 223
at [61]–[64]:
Consent will be valid where the basic information as to the nature of
the proposed medical treatment has been provided to the patient, but if
the nature has been misrepresented the consent is not valid.
The effect of the misrepresentation must be identified if the proposed
treatment is capable of achieving the therapeutic effect. It is ‘necessary
to distinguish between

[page 113]

core elements, which define the nature of the procedure, and

peripheral elements, including risks of adverse outcomes’: at [62].
There is no valid consent if the motive of the practitioner was to
provide non-therapeutic treatment although objectively the proposed
treatment was capable of constituting therapeutic treatment.

Scope of consent
6.16 A signed consent form is not conclusive evidence: Chatterton v
Gerson [1981] 1 All ER 257. Consent to a particular medical procedure is not
necessarily consent to other procedures performed during the same
operation, unless it is proven that there was implicit consent. In McDonald v
Ludwig [2007] QSC 028, the plaintiff underwent a sterilisation operation.
Before the operation, the plaintiff had been made aware of the possible
presence of adhesions that could increase the risk of failure and injury to the
bowel. During the sterilisation, the surgeon separated the adhesions. The
court held that although the plaintiff had not expressly consented to the
division of the adhesions, it was implicit in the advice given to her that the
surgeon may need to deal with them in some way. Therefore, there was no
trespass to the person as the division of the adhesions was incidental to the
sterilisation: at [83]–[84]. Contrast Schweizer v Central Hospital 53 DLR (3d)
494 (1974), where a patient successfully sued as he consented to toe surgery
not to spinal fusion. See also, Murray v McMurchy 2 DLR 442 (1949), where it
was held that a sterilisation procedure undertaken during a caesarean because
it was convenient but not necessary, was not within the scope of the consent.
See also Dean v Phung [2012] NSWCA 223 at [61]–[65].

Voluntary
6.17 It is more common that scope and capacity are in issue in medical
cases of trespass. However, if the consent to the treatment was obtained by
fraud or duress, then it will not be valid. In Dean v Phung [2012] NSWCA
223, the allegation was that the respondent had committed fraud by
representing that the expensive course of treatment was necessary when in
fact it was not. The issue was ‘whether treatment which was unnecessary (and
now conceded to be so) was presented as necessary (again conceded) so that
any apparent consent did not satisfy the criteria for consent to treatment, the
treatment in question being unnecessary in the sense that it was not capable
of constituting a therapeutic response to the patient’s condition’: at [65]. The
court held that as the treatment was not necessary, the misrepresentation
went to the nature of the treatment and therefore the appellant’s consent was
not valid.

Capacity to consent
6.18 If an adult patient lacks legal capacity to give consent, the
guardianship legislation provides for consent to be given by that person’s
appointed guardian under strict regulation: Guardianship and Management
of Property Act 1991 (ACT); Guardianship Act 1987 (NSW); Adult
Guardianship Act 1988 (NT); Guardianship and Administration Act 2000
(Qld); Guardianship and Administration Act 1993 (SA); Guardianship and
Administration Act 1995 (Tas); Guardianship and Administration Act 1986
(Vic); Guardianship and Administration Act 1990 (WA).

[page 114]

6.19 Australian legislation provides that a person attains adulthood upon

the age of 18 years: Age of Majority Act 1974 (ACT) s 5; Minors (Property
and Contracts) Act 1970 (NSW) s 9; Age of Majority Act 1981 (NT) s 4; Law
Reform Act 1995 (Qld) s 17; Age of Majority (Reduction) Act 1971 (SA) s 3;
Age of Majority Act 1973 (Tas) s 3; Age of Majority Act 1977 (Vic) s 3; Age of
Majority Act 1972 (WA) s 5. It is the parents or guardian of a minor who
must give consent for, or the refusal of, medical treatment until the child is of
an age at which they are capable of giving valid consent. In Gillick v West
Norfolk & Wisbech Area Health Authority [1986] AC 112 at 188–9, it was held
that a parent only had the right to consent to their child’s treatment until the
child possessed ‘a sufficient understanding and intelligence to enable him or
her to understand fully what is proposed’. This principle was approved by the
High Court in Secretary, Department of Health & Community Services v J W B
(Marion’s case) (1992) 175 CLR 218 at 237.
South Australian legislation specifically confers capacity to consent to
medical treatment upon children of 16 years of age: Consent to Treatment
and Palliative Care Act 1995 (SA) ss 3, 4 and 6. However, children under the
age of 16 years in South Australia (Consent to Treatment and Palliative Care
Act 1995 (SA) s 12) and under the age of 18 in all other Australian
jurisdictions, must possess sufficient understanding to give valid consent,
otherwise the consent must be by the parent or guardian. See also Minors
(Property and Contracts) Act 1970 (NSW) which gives limited protection to a
doctor treating a minor against actions in assault and battery.

6.20 A court exercising its jurisdiction in the interests of a child’s welfare

(parens patriae jurisdiction) may overrule the informed decision of a parent
or child. Such power is exercised with caution and it is the welfare of the child
which is paramount: Secretary, Department of Health & Community Services v
J W B (Marion’s case) (1992) 175 CLR 218 at 293; Sydney Children’s Hospital
Network (Randwick and Westmead) v X (2013) 49 Fam LR 330 at [10]. See,
for example, Minister for Health v AS (2004) 33 Fam LR 223 (a 15-year-old
child refused consent to blood transfusions due to religious beliefs with
parents’ support of decision); Re Heather; Director-General, Department of
Community Services v M [2003] NSWSC 532 (an 11-year-old child and
parents opposed chemotherapy in preference to seeking alternative and
experimental treatments).

6.21 Cosmetic surgery for minors has been the subject of much public
debate, raising the issue of whether children may validly consent to such
procedures. In Queensland, s 213B of the Public Health Act 2005 makes it an
offence to perform, or offer to perform, cosmetic surgery on a child, unless it
is believed on reasonable grounds that the procedure is in the best interests of
the child.

Emergency treatment
6.22 Under the common law it is permissible to provide treatment in an
emergency without obtaining consent if it is reasonable and necessary: Rogers
v Whitaker (1992) 175 CLR 479 at 489; 109 ALR 625 at 632; Secretary,
Department of Health and Community Services v J W B (Marion’s case) (1992)
175 CLR 218 at 310; Hunter and New England Area Health Service v A (2009)
74 NSWLR 88 at [31]; Gillick v West Norfolk & Wisbech Area Health
Authority [1986] AC 112. However, if the medical practitioner is aware that

[page 115]

the patient has denied consent, this emergency doctrine cannot be relied
upon to avoid liability.
 If medical treatment is provided in an emergency and no person
authorised to give consent is available, the defence of necessity may be raised:
see 6.44.

6.23 Legislation exists in some jurisdictions that allows treatment in an

emergency, subject to knowledge of any refusal by the patient: Children and
Young Persons (Care and Protection) Act 1998 (NSW) s 174; Emergency
Medical Operations Act 1973 (NT) s 3; Consent to Medical Treatment and
Palliative Care Act 1995 (SA) s 13. The common law applies in the other
jurisdictions except in respect of the administration of blood transfusions: see
Transplantation and Anatomy Act 1978 (ACT) s 23; Transplantation and
Anatomy Act 1979 (Qld) s 20; Human Tissue Act 1985 (Tas) s 21; Human
Tissue Act 1982 (Vic) s 24; Human Tissue and Transplant Act 1982 (WA) s
21.

6.24 If the patient is an adult lacking capacity to give consent, the

guardianship legislation in many jurisdictions allows emergency treatment
without consent: Guardianship Act 1987 (NSW) s 37; Emergency Medical
Operations Act 1973 (NT) s 3; Guardianship and Administration Act 2000
(Qld) s 63; Guardianship and Administration Act 1995 (Tas) s 40;
Guardianship and Administration Act 1986 (Vic) s 42A; Guardianship and
Administration Act 1990 (WA) s 110ZH.

Right to refuse medical treatment

6.25 The rights of patients to consent to or refuse medical attention,
although not doubtful in principle, are sometimes difficult in application. It is
quite clear that an adult patient with the capacity to decide may refuse
treatment even if that refusal is life-threatening and even without giving
reasons, rational or otherwise: Hunter and New England Area Health Service v
A (2009) 74 NSWLR 88; Re T (Adult: Refusal of Treatment) [1993] Fam 95;
Qumsieh v Guardianship and Administration Board [1998] VSCA 45; St
George’s Healthcare NHS Trust v S [1998] 3 All ER 673. In Airedale NHS
Trust v Bland [1993] AC 789 at 891, it was stated:
If the patient is capable of making a decision on whether to permit treatment and decides not to
permit it his choice must be obeyed, even if on any objective view it is contrary to his best
interests. A doctor has no right to proceed in the face of objection, even if it is plain to all,
including the patient, that adverse consequences and even death will or may ensue.

See also Re B (Adult: Refusal of Medical Treatment) [2002] 2 All ER 449

(removal of ventilator would lead to death but issue was whether patient had
the capacity to make the decision); Brightwater Care Group v Rossiter [2009]
WASC 229 (issue was the process of refusal of treatment, not the outcomes of
refusal).

6.26 The common law recognises that a person may complete an advance
health directive which will legally bind the person treating them. The
directive may refuse medical treatment and if valid, a medical practitioner
who provides treatment contrary to the directive may be liable in tort: Hunter
and New England Area Health Service v A (2009) 74 NSWLR 88. In some
Australian jurisdictions legislation governs this area of the law, and adults
may prepare advance health directives that state the person’s instructions as
to their future health care:

[page 116]

Medical Treatment (Health Directions) Act 2006 (ACT) Pt 2; Advance

Personal Planning Act 2013 (NT) Pt 2; Powers of Attorney Act 1998 (Qld) Ch
3, Pt 3; Consent to Medical Treatment and Palliative Care Act 1995 (SA) s 8;
Medical Treatment Act 1988 (Vic) ss 5A, 5B(2); Guardianship and
Administration Act 1990 (WA) s 110P. In some jurisdictions, it may be a
criminal offence to administer treatment against a patient’s wishes: Medical
Treatment Act 1988 (Vic) s 6; Guardian and Administration Act 1990 (WA)
Pt 9B. The common law applies in New South Wales and Tasmania.
Revocation or Withdrawal of Consent
6.27 Consent, express or implied, may be revoked or withdrawn by the
party who gave the consent.

6.28 Revocation or withdrawal may take place before or after the act
consented to has taken place. In Plenty v Dillon (1991) 171 CLR 635; 98 ALR
353, it was held by the High Court that the implied licence to enter the
plaintiff’s premises had been revoked prior to the police officers’ entry to
serve a summons and, therefore, entry was a trespass: see 4.32. In Kuru v New
South Wales (2008) 246 ALR 260, it was held that, by failing to leave the
appellant’s property within a reasonable time after revocation of consent, the
police officers were committing a trespass: see 4.35.

6.29 It is also possible that a contractual term prevents the withdrawal of

the plaintiff’s consent having immediate effect: Balmain New Ferry Co Ltd v
Robertson (1906) 4 CLR 379, and see 3.63.

4 Self-Defence
6.30 An act of self-defence is regarded by the law as an instinctive reaction
in circumstances where there is little opportunity for rational analysis of all of
the possible courses open. The defendant’s interference is justified by the
need to avert the threat of imminent harm to their person.
To succeed in the defence of self-defence, the defendant must prove:
there was a threat of imminent harm to their person; and
there were reasonable grounds to believe that the force used was
necessary: Fontin v Katapodis (1962) 108 CLR 177; McClelland v
Symons [1951] VLR 157.
In Watkins v Victoria (2010) 27 VR 543 at [71]–[72], the defence was
explained as follows:
 In the context of a civil proceeding, the defendant must have believed at the time when he
committed the relevant act that what he was doing was necessary; and that belief must have been
based on reasonable grounds. The second element does not involve a test about what a
hypothetical reasonable person might have believed in the circumstances, but rather whether the
defendant had reasonable grounds for his belief, in the circumstances as he perceived them to
be.

In determining whether the defendant believed that the force used was necessary, consideration
should be given to the fact that a person who has reacted instantly to imminent danger cannot
be expected to weigh precisely the exact measure of self defensive action which is required.

See also Howard v Wing [2000] TASSC 147; Pearce v Hallett [1969] SASR
423; Bennett v Dopke [1973] VR 239.

[page 117]

6.31 If the defendant used excessive force, the defence will fail: Fontin v
Katapodis (1962) 108 CLR 177; Underhill v Sherwell [1997] NSWCA 325. The
degree of force will be a question of fact in view of all of the circumstances:
Watkins v Victoria (2010) 27 VR 543 at [72]. In McClelland v Symons [1951]
VLR 157, the plaintiff picked a rifle, loaded it and pointed it at the defendant
saying, ‘I’ve brought the gun to shoot you and here it is’. The defendant then
struck the plaintiff on the head with a metal bar and ended up being sued for
battery. It was held that the defendant had not committed a battery as he was
acting in reasonable self-defence. In Miller v Sotiropoulos (NSWCA, Mason P,
Meagher and Powell JJA, 18 August 1997, unreported) when considering the
claim of self-defence, Meagher JA observed ‘a minor push cannot possibly
justify a lethal punch in reply’: at 14.
In Fontin v Katapodis (1962) 108 CLR 177, the plaintiff was a customer at
the glass department of a hardware store. The defendant was employed to cut
glass in the department. The plaintiff and the defendant argued when the
defendant refused to apologise to the plaintiff for telling the manager of the
glass department that he (the plaintiff) had not paid his account when he had,
in fact, done so. The plaintiff picked up a T-square from beside the
defendant’s bench and hit the defendant on the shoulder. The defendant then
threw an off-cut of glass at the plaintiff’s face. The plaintiff put up his hands
to protect his face, and the glass made a deep cut in his arm. The High Court
of Australia held that the plaintiff’s action in battery succeeded because the
defendant’s act of self-defence was unreasonable. McTiernan J said (at 181–
2):
It is clear that Fontin had a right to defend himself against being beaten by Katapodis. The
question is whether, in the circumstances, it was reasonably necessary for him to throw the piece
of glass at Katapodis … Perhaps Katapodis may have struck more severe blows if Fontin had not
prevented him. But to throw the piece of glass at Katapodis as a means of self-defence was out of
all reasonable proportion to the emergency confronting Fontin.

6.32 In Queensland, the definition of ‘assault’ in s 245 of the Criminal

Code is applied to civil cases of assault and battery; therefore, the defences
contained in the Code may also apply: see 3.43. Section 271 provides a
complete defence in that it is lawful for the defendant to use such force that is
reasonably necessary to make an effectual defence against the unprovoked
attack. The force cannot be intended, or likely, to cause grievous bodily harm
or death.
In Western Australia, the defences contained in the Criminal Code are
available in civil actions as ‘if an act is declared lawful by a provision of the
Criminal Code, the effect of s 5 of the Criminal Code Act is to provide a
statutory defence in addition to any existing common law defences’: May v
Thomas (No 2) [2012] WADC 96 at [21]. Therefore, self-defence against an
unprovoked assault may be raised as a defence: Criminal Code (WA) s 248.
See also s 52 of the Civil Liability Act 2002 (NSW), which provides that a
person does not incur civil liability for conduct arising from self-defence if
they believe the conduct is necessary. See New South Wales v McMaster
[2015] NSWCA 228.

5 Defence of Another
6.33 Historically, it was a good defence to use reasonable force to protect a
party closely related to, or associated with, oneself, for example a spouse or
other close

[page 118]

relative such as a parent or child, or a servant or master. There is no reason

why the defence should not extend to all persons, but the cases have not
established a body of law extending the defence to cases where the defendant
was defending a stranger. The same requirements as in self-defence apply to
defence of another — the defendant must believe on reasonable grounds that
it was necessary for them to have done what they did in defence of another
person: R v Portelli (2004) 148 A Crim R 282; Watkins v Victoria (2010) 27
VR 543.
In Goss v Nicholas [1960] Tas SR 133, the plaintiff and a female friend
named Wilson went to the house of a man named Pemberton to complain of
certain words Pemberton’s daughter had used to Wilson’s daughter. The
plaintiff and Pemberton had a heated dialogue on the doorstep, and the
plaintiff repeatedly wagged his finger at Pemberton, saying that he would be
‘on the warpath’ if Pemberton’s daughter was not punished. The defendant
then came running past Pemberton and struck the plaintiff a heavy blow on
the cheek. The plaintiff alleged battery, but the defendant alleged that his
actions were reasonably necessary in defence of Pemberton. Crawford J said
(at 144):
[I] take the law to be that a person is entitled to use force to prevent a stranger from being
assaulted if he has reasonable grounds for believing that an assault upon that stranger is about to
take place. In considering what force may be used, I hold that it must be reasonably
proportioned to the degree of injury to be expected from the assault upon the stranger.

It was held that the defendant had used more force than was reasonably
necessary, given the nature of the threat to Pemberton by the plaintiff.
6.34 For civil actions in Queensland, s 273 of the Criminal Code provides
the same defence. See also Criminal Code (WA) s 250. Section 52 of the Civil
Liability Act 2002 (NSW) provides that a person does not incur civil liability
when defending another person if they believe the conduct is necessary.

6 Provocation (Queensland)
6.35 Provocation arises when it is alleged that the acts of the plaintiff
induced the defendant to lose self-control. It is not a defence under the
common law (Fontin v Katapodis (1962) 108 CLR 177), but in Queensland,
due to the application of the Criminal Code to civil actions of assault and
battery, provocation as provided by the Code provides a complete defence:
White v Connolly [1927] St R Qd 75; Love v Egan (1970) 65 QJPR 102; see
3.44.
To establish provocation under s 269 of the Criminal Code (Qld), the
defendant must prove that:
they were provoked by the plaintiff and acted before there was time for
their passion to cool;
the force used was not disproportionate to the provocation (see 6.31);
and
the force used was neither intended nor likely to cause death or
grievous bodily harm.
See also, Criminal Code (WA) s 246.

6.36 In Prior v Kemp [2001] WASCA 22, the appellant was convicted of
assault under s 313 of the Criminal Code (WA). The appellant claimed that
he had been provoked by his

[page 119]
estranged wife’s insults that he had cheated his dying grandfather. At trial, it
was held that the defence of provocation (Criminal Code (WA) s 246) was
not available as the evidence was that the assault had not occurred in response
to the wife’s comments; there was no sudden reaction by the appellant. The
court on appeal stated (at [60]):
In the first stage, the gravity of the provocation is assessed by reference to the particular
characteristics of the accused which may be relevant. Such characteristics may include age, race,
sex, personal history and other factors. The result of that assessment is a characterisation of the
provocation upon a scale of gravity, ranging from minor and trivial to extreme. The next
question involves an assessment of how an ordinary person could have responded to
provocation of that particular degree of gravity.

It was held that there was no defence of provocation as the evidence was
that there was no loss of self-control; allegations concerning the appellant’s
grandfather had been raised for over 13 years between the parties and the
assault was linked to the appellant taking steps to remove his wife from the
premises.

7 Defence of Property
6.37 It is a good defence to use reasonable force to defend one’s own
property: Norton v Hoare (No 1) (1913) 17 CLR 310 at 322. There is no reason
why it should not extend to defence of another’s property but, as with defence
of others, the authorities have not clearly confirmed such a broad principle.
The defensive conduct must be proportionate to the threatening activity,
although it could be argued that the interest in property should be less
deserving of protection than that of personal safety and this may have an
effect on measuring proportionality. For civil actions of assault and battery in
Queensland, the defence is contained in s 277 of the Criminal Code. See also
Criminal Code (WA) s 254 (defence of property against trespassers: removal
of disorderly persons).
 8 Self-Help
6.38 A person may be entitled to enter the land of another or take other
self-help measures, upon giving of due notice, to abate a nuisance which
substantially interferes with enjoyment of one’s land: see Chapter 25.
Therefore, justified abatement of nuisance is a defence to an action for
trespass to land: Lemmon v Webb [1895] AC 1. However, the acts of
abatement must be reasonable and proportionate to the nuisance.
See also s 141 of the Civil Law (Wrongs) Act 2002 (ACT), where it is a
defence to an action in trespass to land if:
the defendant does not claim an interest in the land; and
establishes that the trespass was unintentional or was due to
negligence; and
has made a reasonable offer to make amends before an action is
brought.

[page 120]

9 Necessity
6.39 Necessity differs from defence of an interest because it need not
involve a response to some wrongdoing by another; it is merely a necessary
response to the imminent threat of danger from any source. In Proudman v
Allen [1954] SASR 336 at 341, Hannan AJ stated:
… the immunity for the consequences of such acts of interference is not limited to persons
having an interest in the chattels concerned or 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 or she derives or is likely to derive any pecuniary advantage
from the action or not, or is fulfilling any legal obligation.
6.40 The defence of necessity requires that reasonable steps were taken to
protect a person or property from harm even if, in so doing, damage is caused
to another. For the defence to be successful there must be:
an imminent threat of grave harm to the plaintiff, property or goods;
a reasonable apparent necessity for taking such action; and
no fault on the part of the defendant for creating the imminent harm.

Imminent Threat
6.41 For the defence to apply there must be a real and imminent threat of
harm: Cresswell v Swirl [1947] 2 All ER 730 at 732. An imminent threat is one
that is about to happen. For example, in Cope v Sharpe (No 2) [1912] 1 KB
496, there was an imminent threat of property being destroyed as a fire was
approaching. In Cresswell v Swirl, the imminent threat was a trespassing dog
renewing its attack on the defendant’s animals if not stopped.
However, in London Borough of Southwark v Williams [1971] Ch 734, there
was insufficient urgency and threat of peril to allow it as a defence to destitute
squatters trespassing in empty council dwellings. Lord Denning MR said (at
744):
[I]f hunger were once allowed to be an excuse for stealing, it would open a way through which
all kinds of disorder and lawlessness would pass. So here. If homelessness were once admitted as
a defence to trespass, no one’s house would be safe. Necessity would open a door which no man
could shut.

Reasonable Necessity
6.42 The interference by the defendant must be the result of reasonable
steps being taken to protect the lives or property of the public. The steps
taken to eliminate the danger must be reasonable in all of the circumstances:
Cresswell v Swirl [1947] 2 All ER 730; Murray v McMurchy [1949] 2 DLR 442.
Police, for example, may need to act out of necessity to capture criminals
(Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242; 2 All ER
985) or otherwise to protect the public: Dehn v Attorney-General [1988] 2
NZLR 564.
In Proudman v Allen [1954] SASR 336, the defendant’s act of opening the
door of the plaintiff’s runaway car and steering it away from other parked
vehicles was justified even though as a result, the car ran off a cliff into the
sea.

[page 121]

In Cope v Sharpe (No 2) [1912] 1 KB 496, the defendant entered the

plaintiff’s land to start a firebreak to prevent an existing fire from spreading to
his employer’s property. Setting fire to the heather was held to be reasonable
in the circumstances and so justified. Similarly, the defendant’s act of
interference with the plaintiff’s vessel by towing it away was justified as
necessary to prevent destruction of the defendant’s wharf in Beckingham v
Port Jackson & Manly Steamship Co (1957) SR (NSW) 403.

Imminent Threat Not Due to Defendant’s

Negligence
6.43 Where the need to act out of necessity has been brought about by the
defendant’s own actions or own negligence, the defence of necessity will not
be available. In Rigby v Chief Constable of Northamptonshire [1985] 1 WLR
1242; 2 All ER 985, the police fired gas canisters into the plaintiff’s gunsmith
shop where a dangerous psychopath was hiding. Despite knowing that this
person had spread inflammable powder on the floor of the shop, which could
be ignited by the heated gas canisters, the police failed to ensure that adequate
fire-fighting equipment was available. The shop burnt down and, despite the
emergency situation, the defence of necessity was not allowed due to the
negligence of the police. See also Simon v Condran [2013] NSWDC 32, where
the plaintiff was claiming damages for being bitten by the defendant’s dog.
The defendant claimed that at the time the plaintiff was trespassing on the
land, a defence under the relevant legislation in respect of dogs. The plaintiff
argued that the trespass was necessary to stop a fight between her dog and the
defendant’s (the emergency). The court held that it was the plaintiff’s own
negligence, more than just inattention or mere inadvertence, that allowed the
emergency to arise and therefore the defence of necessity did not apply.

Medical Necessity
6.44 The defence of necessity often arises in actions of trespass to the
person against doctors arising from operations. This was considered in detail
in Re F (Mental Patient: Sterilisation) [1990] 2 AC 1, in relation to medical
treatment and a category of necessity in which assistance is provided out of
necessity to another without their consent. The House of Lords held that
necessity of this kind required:
a necessity to act when it was not practicable to communicate with the
assisted person; and
the act of necessity must be such as a reasonable person would take, in
all the circumstances, when acting in the best interests of the assisted
person.
In Re A (Children) (Conjoined Twins: Surgical Separation) [2000] 4 All ER
961, the English Court of Appeal applied the doctrine of necessity to hold that
an operation to separate twins was needed. The court held that the evil
inflicted (the death of one twin) was not disproportionate to the evil avoided
(the death of both twins). Therefore, by the doctrine of necessity, the death of
the twin as a result of the operation was necessary to avoid a greater evil in
the death of both of the children. See also Queensland v Nolan [2002] 1 Qd R
454 where, in similar circumstances, the Queensland Supreme Court held
that the defence of necessity did not apply to the Criminal Code, but
approved the approach in Re A (Children) (Conjoined Twins: Surgical
Separation).

[page 122]

10 Defences Specific to Trespass to

Personal Property
Jus Tertii
6.45 In respect of cases where title to the goods, that is ownership, is in
issue, the defence of jus tertii may be raised: Banks v Ferrari [2000] NSWSC
874 at [85] and [120]. Jus tertii may be raised if the defendant alleges that the
right to immediate possession is vested in a third party: Leake v Loveday
(1842) 4 Man & G 972; 134 ER 399.
The defence was explained by Henchman J in Henry Berry & Co Pty Ltd v
Rushton [1937] SR Qld 109 at 119:
[A]lthough where the plaintiff was in actual possession of the goods when the defendant by a
wrongful act got possession of them the defendant can plead the jus tertii only in certain cases
… it is otherwise when the plaintiff was not in actual possession when the wrongful act was
done. When the plaintiff was not in actual possession, but relies upon his right to possession, he
must recover on the strength of his title, and the defendant may, under a plea of not guilty or
not possessed, show that the plaintiff has no right to immediate possession because that right is
in some other person.

However, jus tertii can only be raised by a defendant whose title to sue
derives from the third party with better title. In Armory v Delamirie (1722) 1
Stra 505; 93 ER 664, a chimney sweep’s boy (the finder) found a jewelled ring
and took it to a jewellery shop for valuation. The jeweller’s apprentice
removed the jewel from the ring after weighing it and returned only the
setting. He made an offer for it that was refused. The finder sued the owner of
the shop in conversion for the value of the jewel. It was held that jus tertii did
not apply as the defendant was not claiming title to the goods through a third
party, but merely asserting that the finder was not the true owner of the ring.

Loss of Possession
6.46 In conversion, the defendant may avoid liability if they can show that
possession is no longer retained and that the loss of possession was not due to
a positive act on the defendant’s part: Ashby v Tolhurst [1937] 2 KB 242. In
conversion, a negligent subsequent loss of possession prevents conversion
arising, but a negligent loss will not prevent detinue applying in an
appropriate case.

Distress Damage Feasant

6.47 An occupier of land may detain goods that are unlawfully on their
land and causing damage, until compensation is paid for any damage caused:
Gilchrist, Watt & Cunningham v Logan [1927] St R Qd 185. Therefore, an
occupier of land may claim that the possession of the plaintiff’s goods is due
to distress damage feasant.
This self-help remedy has many restrictions. It is not available if the owner
of the goods is on the land: Tow & Salvage Ltd v Murray [1984] 2 NZLR 144;
Swenson v Shire of Drayton [1932] St R Qd 98. It may not be claimed if the
chattels are no longer on the land: Clement v Milner (1880) 3 Esp 95; 170 ER
550.
Although distress damage feasant originally was used for damage caused by
straying livestock, distress in respect of livestock has been abolished or
modified in some jurisdictions:

[page 123]

Civil Law (Wrongs) Act 2002 (ACT) s 213; Animals Act 1977 (NSW) s 5; Law
of Animals Act 1962 (Tas) Pt II; Impounding of Livestock Act 1994 (Vic) ss
9–11.

11 Statutory Authority
6.48 Where a statute expressly authorises the doing of an act by a person,
no action in tort will lie against that person for doing the act authorised by
statute. For example, s 80(9B) of the Transport Operations (Road Use
Management) Act 1995 (Qld) states that a person required by a police officer
to give a specimen of blood must allow a health care professional to take the
specimen, and s 484 and Sch 3 of the Telecommunications Act 1997 (Cth)
authorise entry onto land to inspect, install or maintain a facility of the
communications carrier. However, if a person is authorised by statute to be
on the plaintiff’s property and a wrong is then committed, the law deems it to
be a trespass from the initial entry under the doctrine of trespass ab initio: see
4.38.

6.49 Whether there is statutory authority will depend upon the effect of
the statute in question: O’Brien v Shire of Rosedale [1969] VR 645. There is a
presumption not to interfere with common law rights and so the onus is upon
the defendant claiming the statutory authority to establish that the invasion of
another’s rights is sanctioned by statute: Allen v Gulf Oil Refining Ltd [1981]
AC 1001; Amstad v Brisbane City Council & Ward (No 1) [1968] Qd R 334.

6.50 Where public bodies are authorised to carry out some activity that
causes damage, no liability will arise unless the activity is carried out
negligently. Only clear words in the statute indicating that a negligently
performed activity will not attract liability will provide immunity from suit:
Geddis v Proprietors of Bann Reservoir (1878) 3 App Cas 430 at 455 per Lord
Blackburn; applied in Benning v Wong (1969) 122 CLR 249 at 256. See also
Soanes v Plessing [1985] 2 Qd R 55.
 In Coco v R (1994) 179 CLR 427; 120 ALR 415, the defendant had been
convicted of a criminal offence for offering to bribe Commonwealth officers.
The primary evidence against him was a series of tape recordings made by a
listening device installed by the police on premises occupied by the
defendant. The police had obtained an order from a judge, approving the
installation of the device under the Invasion of Privacy Act 1971 (Qld). The
defendant appealed against conviction, alleging the evidence against him was
inadmissible because it had been illegally obtained. The High Court of
Australia quashed his conviction. Mason CJ, Brennan, Gaudron and McHugh
JJ held (at CLR 436–7; ALR 417–19):
Every unauthorised entry upon private property is a trespass, the right of a person in possession
or entitled to possession of premises to exclude others from those premises being a fundamental
common law right. In accordance with that principle, a police officer who enters or remains on
private property without the leave or licence of the person in possession or entitled to possession
commits a trespass unless the entry or presence on the premises is authorised or excused by law.
Statutory authority to engage in what otherwise would be tortious conduct must be clearly
expressed in unmistakable and unambiguous language … General words will rarely be sufficient
for that purpose if they do not specifically deal with the question because, in the context in
which they appear, they will often be ambiguous on the aspect of interference with fundamental
rights.

[page 124]

In Schneidas v Corrective Services Commission (NSWSC, Lee J, 8 April

1983, unreported), a prisoner on a hunger strike sought an injunction to
restrain prison authorities from force-feeding him. Section 16(2) of the
Prisons Act 1952 (NSW) provided that if a prisoner’s life or health was likely
to be endangered by the failure to undergo medical treatment, the prisoner
could be compelled to undergo the treatment. It was held that if the prisoner’s
health had deteriorated to a crucial stage, force-feeding amounted to medical
treatment and was authorised by the legislation. It was noted that the defence
of necessity was unlikely to be available to the doctor.
6.51 In many cases, the relevant statute may provide for reasonable
compensation to be paid for any financial loss or damage. If no compensation
is provided for by the statute, the defendant must show the
interference/damage was the inevitable consequence of implementing the
statute: Manchester Corporation v Farnworth [1930] AC 171. In some cases,
the statute in question may purport to prohibit a court from considering the
matter: see Jones v Department of Employment [1989] QB 1.

12 Disciplinary Powers
6.52 Certain persons have common law rights to exercise some form of
disciplinary control over others. For example, masters of ships may use
reasonable force to restrain passengers and crew from hindering the safety of
the vessel or those on board the vessel: Robinson v Balmain New Ferry Co Ltd
[1910] AC 295.

6.53 Parents have a right to discipline children in a moderate and

reasonable manner: Ramsay v Larsen (1964) 111 CLR 16. In R v Terry [1955]
VLR 114 at 116, Scholl J stated:
A parent has a lawful right to inflict reasonable and moderate corporal punishment on his or her
child for the purpose of correcting the child in wrong behaviour, but there are exceedingly strict
limits to that right. In the first place, the punishment must be moderate and reasonable. In the
second place, it must have a proper relation to the age, physique and mentality of the child, and
in the third place, it must be carried out with a reasonable means or instrument …

A person who stands in loco parentis to a child with the parent’s consent
has delegated parental authority to discipline the child: Mansell v Griffin
[1908] 1 KB 160. See also R v Kinloch (1996) 187 LSJS 124, where it was held
that even if the nine-year-old child’s aunt was acting in loco parentis,
prolonged hitting with a horse whip because the child had difficulty with
reading could not be characterised as moderate and reasonable chastisement
for misbehaviour.
6.54 Similarly, teachers have disciplinary powers over pupils, either
because they are regarded as having had the parents’ disciplinary powers
delegated to them, or because their powers derive from the power vested by
the government in state school teachers to maintain control: Smith v O’Byrne
(1894) 5 QLJ 126; R v Terry [1955] VLR 114. This inherent power of teachers
overrides any express prohibition of corporal punishment by parents: Ramsay
v Larsen (1964) 111 CLR 16 at 29.
In many jurisdictions, the use of corporal punishment (physical force used
to punish or correct) as a means of discipline is prohibited by government
education authorities:

[page 125]

Education Act 2004 (ACT) s 7(4); Education Act 1990 (NSW) ss 35(2A) and
47(h); Education Act 2015 (NT) s 162; Education Act 1994 (Tas) s 82A;
Education and Training Reform Regulations 2007 (Vic) reg 14; School
Education Regulations 2000 (WA) reg 40(2).2 In Queensland, corporal
punishment was abolished through policy of the Department of Education in
1995 (Department of Education, Qld, Annual Report, 1994-1995, at p 6) and
is currently reflected in the Department of Education and Training’s ‘Safe,
Supportive and Disciplined School Environment’ procedure.

13 Judicial Acts
6.55 It is a good defence to an action in tort that the defendant is a
superior court judge who performed the tortious act in his or her judicial
capacity within the jurisdiction of the court: Gerard v Hope [1965] Tas SR 15;
Anderson v Gorrie [1895] 1 QB 668. Inferior judicial officers will be personally
liable if they act beyond their jurisdiction: R v Manchester City Magistrates’
Court; Ex parte Davies [1989] QB 631; [1988] 1 All ER 910; Spautz v
Butterworth (1996) 41 NSWLR 1.

6.56 Legislation exists to provide some immunity to judicial officers of

inferior courts when acting in good faith in the performance of their duties:
Magistrates Court Act 1930 (ACT) Pt 2.3; Judicial Officers Act 1986 (NSW)
Pt 8A; Magistrates Act 1977 (NT) s 19A; Magistrates Act 1991 (Qld) s 51;
Magistrates Court Act 1991 (SA) s 44; Justices Act 1959 (Tas) Pt XII;
Magistrates’ Court Act 1989 (Vic) s 14; Magistrates Court Act 2004 (WA) s
37.

14 Execution of Process
6.57 A sheriff or other court officer acting under a writ of execution or
warrant, which has been issued out of a superior court of record, has a good
defence to an action in trespass, conversion or false imprisonment, even if the
judgment upon which the process was based is invalid. It would seem such an
officer may be liable if the writ or warrant is itself invalid.

6.58 Officials of inferior courts have a similar defence, provided the writ or
warrant was properly issued and the subject matter of the judgment upon
which the writ or warrant was based was itself within the inferior court’s
jurisdiction.
Failure to act in compliance with the process will attract personal liability:
O’Connor v Sheriff of Queensland (1892) 4 QLJ 213.

15 Crown Authority
6.59 The Crown may raise the defence of act of state in respect of tortious
acts against aliens committed outside the Commonwealth. This defence is not
available within the Commonwealth, except in the case of a tortious act
committed against an enemy alien.

[page 126]

The Crown, furthermore, retains a prerogative to seize and destroy

property of an individual for the defence of the realm. Compensation may be
required unless the acquisition occurred during actual hostilities. Under the
Commonwealth Constitution, the Commonwealth may not acquire property
except upon just terms: see s 51(i).

16 Contributory Negligence
6.60 It has been generally assumed in Australia that contributory
negligence is not available as a defence to an intentional tort: Fontin v
Katapodis (1962) 108 CLR 177; Venning v Chin (1974) 10 SASR 299.
In Horkin v North Melbourne Football Club Social Club [1983] 1 VR 153,
the plaintiff Carlton AFL supporter went to a game between Carlton and
North Melbourne. After the game, he went to the after-match room where
free food and drink were provided by the North Melbourne club, even though
he was not entitled to admission. Some time later, he was ejected from the
club by employees of the defendant, the North Melbourne Football Club
Social Club.
The plaintiff alleged that the employees had intentionally committed the
tort of battery by throwing him bodily from the club premises. The defendant
argued that the plaintiff had committed the tort of trespass by going into the
after-match room, and the tort of battery by striking the defendant’s
employees, and that this tortious conduct constituted ‘fault’ on the plaintiff’s
part for the purposes of the Victorian apportionment legislation. It was held
that the plaintiff’s trespass and battery would not have constituted ‘fault’ for
the purposes of the apportionment legislation, because the extended
definition applied to the defendant’s, but not the plaintiff’s, fault.
Brooking J stated (at 157–8):
But does contributory negligence operate to reduce damages in an action for battery? Trespass
to the person may be either intentional or negligent, and accordingly there can be a negligent
battery so far as the law of tort is concerned …

“Fault” is defined in s 25 of the Wrongs Act 1958 [(Vic)] as: “negligence breach of statutory duty
or other act or omission which gives rise to a liability in tort or would, apart from this Part, give
rise to the defence of contributory negligence”. …

In Winter v Bennett [1956] VLR 612 at 622, Herring CJ and Barry J treat the first limb of the
definition as concerned only with defendants. Whether or not this observation binds me, I am
content to adopt it, for it accords with my own view …

It follows that the defendant in the present case cannot rely on the torts of trespass to land and
battery committed by the plaintiff to found an apportionment and that apportionment is not
possible unless at common law the defendant to an action for battery could set up contributory
negligence.

6.61 In Queensland, s 5 of the Law Reform Act 1995 defines ‘wrong’, for
the purposes of contributory negligence, as an act or omission that gives rise
to liability in tort for which the defence of contributory negligence is available
under the common law. Therefore, the same argument would apply.

[page 127]

In Wilton v Commonwealth Trading Bank of Australia [1973] 2 NSWLR

644, the plaintiff solicitor employed a clerk who stole cheques belonging to
the plaintiff and persuaded the defendant to make payment on them. The
plaintiff sued the clerk and the defendant for conversion of the cheques. It
was alleged that the plaintiff had been contributorily negligent by continuing
to employ the clerk, even after he knew that he was dishonestly appropriating
the plaintiff’s funds. Samuels J held that, as contributory negligence had not
been a defence to an action in conversion at common law, it could not give
rise to apportionment under the legislation.
In Venning v Chin (1974) 10 SASR 299 at 317, Bray CJ held:
It is clear that contributory negligence could never be a defence to an intentional tort, or
perhaps it would be preferable to say to the intentional consequences of a tort.

6.62 Therefore, it may be open to argue contributory negligence in respect

of damages claimed for the unintentional consequences of the tort. In New
South Wales v Riley (2003) 576 NSWLR 496, the respondent established that
police officers had assaulted and falsely imprisoned him as well as trespassed
on his land. The respondent had fractured his wrist while being transported
and falsely imprisoned in the back of a police van. The Court of Appeal found
that the fracture was a foreseeable consequence of the false imprisonment
which was the intentional wrongdoing: at [102]. However, the court held that
the fracture itself was not inflicted intentionally and was, in fact, an indirect
consequence of the false imprisonment: at [105]. Hodgson JA stated (at
[107]):
I am inclined to the view that, once some direct interference is established so that an action for
trespass does lie, even indirect consequences of that interference can be compensated in the
action for trespass (although such action would not lie at all if there was no direct interference
but only indirect consequences). However, where there are indirect and intentional
consequences of the trespass, I think the better view is that the defence of contributory
negligence is available in respect of those unintended consequences.

6.63 In relation to interferences with personal property, it has been argued

that the plaintiff’s contributory negligence in failing to take reasonable care
for the safety of the goods should permit a reduction of damages as a partial
defence under apportionment legislation.3 However desirable that may be,
the defence is not supported by any clear authority under the common law.
There is, however, authority to the contrary: Farquharson Bros & Co v C King
& Co [1902] AC 325; Day v Bank of New South Wales (1978) 18 SASR 163; 19
ALR 321; Australian Guarantee Corporation Ltd v State Bank of Victoria
Commissioners [1989] VR 617.
 [page 128]

17 Mistake, Insanity and Involuntarism

Mistake
6.64 Mistake is not a defence in cases of direct interference to persons or
property. This is because the motive of the defendant is irrelevant in
determining whether the defendant has committed an intentional act or acted
without due care. Mistake arises where the actual conduct was intended
under the erroneous notion that the conduct would not violate another’s
right. For example:
an auctioneer innocently selling goods under the mistaken belief that
the person who delivered the goods for auction had title, is liable in
conversion (Consolidated Co v Curtis & Son [1892] 1 QB 495); or
a rail authority seizing plant and materials in the mistaken belief that it
had the right to seize them, is liable in detinue (Egan v State Transport
Authority (1982) 31 SASR 481); or
a prison authority not releasing a prisoner on the correct release date
in the mistaken belief that the prisoner is not due for release, is liable in
false imprisonment: Cowell v Corrective Services Commission of New
South Wales (1988) 13 NSWLR 714; R v Brockhill Prison; Ex parte
Evans (No 2) [2000] 4 All ER 15.

Insanity and Involuntarism

6.65 In Weaver v Ward (1617) Hob 134; 80 ER 284, it was stated that ‘if a
lunatic hurt a man, he shall be answerable in trespass’ and, therefore, ‘no man
shall be excused of a trespass … except it be judged utterly without his fault’.
Insanity is not in itself a defence to trespass, but because liability for trespass
may depend increasingly upon proof of intention, it may be difficult to show
that such an element existed in a mentally ill person. In Morris v Marsden
[1952] 1 All ER 925, the defendant violently attacked the plaintiff in the
hallway of a hotel. The defendant was a certified lunatic at the time who was
aware of the quality of his acts but did not know they were wrong. The
defence failed because the defendant was capable of forming the necessary
intention. A mentally ill person will be liable for assault if the nature and
quality of the act was known, even though it was not known that it was
morally wrong: Morris v Marsden; Carrier v Bonham [2002] 1 Qd R 474.

6.66 If the mental state is such as to render the defendant’s acts

involuntary, then this may be a good defence, since a party will not normally
be held responsible for involuntary acts unless personally responsible for
causing their onset, for example through negligent failure to take necessary
medication: Roberts v Ramsbottom [1980] 1 All ER 7.

18 Ex Turpi Causa Oritur Non Actio

6.67 The maxim ex turpi causa oritur non actio (no right of action arises
from a base cause) embodies a rule of public policy excluding the benefits of
the law to persons who have engaged in some base or illegal act. For example,
a person seeking to sue in detinue or conversion who has obtained possession
pursuant to an illegal contract will be denied a right of action: Thomas Brown
& Sons Ltd v Fazal Deen (1962) 108 CLR 391.

[page 129]

Further Reading
R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis
 Butterworths, Sydney, 2013, Ch 6.
H Luntz, D Hambly, K Burns, J Dietrich and N Foster, Torts: Cases and
Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2012, Ch 13.
S Yeo, ‘Determining Consent in Body Contact Sports’ (1998) 6 TLJ
199.

1. In Queensland, due to the application of s 245 of the Criminal Code to civil actions of battery and
assault, lack of consent is an element to be proven by the plaintiff: see 3.42.
2. For a discussion of discipline in schools, see D Butler and B Mathews, Schools and the Law, The
Federation Press, Sydney, 2007, Ch 4.
3. J Goldring, ‘The Negligence of the Plaintiff in Conversion’ (1977) 11 MULR 91.
[page 131]
 Chapter 7

Intentional Damage to a Person

1 Introduction
7.1 The torts that encompass trespass to the person provide protection of a
person’s bodily integrity: see Chapter 3. However, not all interferences to a
person fall within one of these nominate torts, for example if the interference
is intentional but not necessarily direct or the interference does not fall within
a recognised trespass. Trespass to the person is not the only tortious action
available to a plaintiff for intentional interferences. Other possible actions in
tort that may impose liability upon a person include:
the intentional infliction of psychiatric injury, commonly referred to as
the Wilkinson v Downton tort;
malicious prosecution; and
privacy.

2 Intentional Infliction of Psychiatric

Injury
7.2 Intentional infliction of psychiatric injury is one of the innominate
torts in Australia: see 2.25. This innominate tort was first recognised in
England in the decision of Wilkinson v Downton [1897] 2 QB 57, in which the
defendant informed the plaintiff that her husband had been injured, causing
her to suffer shock leading to physical illness. The act was done with the
intention of causing nervous shock. See also Janvier v Sweeney [1919] 2 KB
316; Johnson v Commonwealth (1927) 27 SR (NSW) 133 (husband beaten in
front of wife before being taken away); Purdy v Woznesensky [1937] 2 WWR
116.

7.3 In 1937, the High Court of Australia in Bunyan v Jordan (1937) 57 CLR
1 restricted the principle to situations where the conduct is actually directed
to the person injured with the intention of causing harm. In other
jurisdictions there have been cases where the plaintiff was neither the
immediate recipient of the harmful words nor a witness of physical harm
being inflicted upon another. See, for example, Bielitski v Obadiak (1922) 65
DLR 627 (words relayed to the plaintiff through a series of intermediaries);
Stevenson v Basham [1922] NZLR 225 (plaintiff overheard husband being
threatened by landlord). However, in Carter v Walker (2010) Aust Torts
Reports ¶82-076 at [264], it was noted that such cases

[page 132]

were ‘exceptional’ and ‘cases in which the person affected was within a group
with whom the defendant had intended to communicate’.

7.4 The act complained of must be one which the defendant could foresee
would cause harm of the particular type to a normal person, unless there was
special reason to know of the delicate constitution of the plaintiff.
For the facts to fit within the tort, mere fright is insufficient; the shock
must be manifested in objective physical or psychopathological consequences.
In Giller v Procopets (2008) 24 VR 1, it was emphasised that to establish the
tort of intentional infliction of harm, the plaintiff must suffer a recognised
psychiatric illness. In this case it was argued that the intentional infliction of
mental distress was compensable. A majority of the Court of Appeal
disagreed. Neave JA stated (at [473]):
 It must be conceded that the law of torts operates inconsistently by providing compensation for
intentional infliction of purely mental distress in torts such as defamation and false
imprisonment, but not in the case of the tort of intentionally causing harm. However, the
expansion of the Wilkinson principle to cover mental distress would also create inconsistencies.
Over the past decade, legislatures across Australia have imposed limits on the availability and
amount of damages recoverable in negligence for physical injury. It would seem anomalous to
expand the possibility of recovering damages for hurt feelings, even when intentionally caused,
at a time when recovery of damages for non-economic loss arising out of physical injury has
become increasingly limited.

7.5 In Northern Territory v Mengel (1995) 185 CLR 307 at 347, the majority
of the High Court held that the phrase ‘the intentional infliction of harm’
included:
… acts which are calculated in the ordinary course to cause harm, as in Wilkinson v Downton
[1897] 2 QB 57, or which are done with reckless indifference as to the harm that is likely to
ensue, as in the case where a person, having recklessly ignored the means of ascertaining the
existence of a contract, acts in a way that procures its breach.

In Wong v Parkside Health NHS Trust [2003] 3 All ER 932 at 938, Hale LJ
stated:
For the tort to be committed, as with any other action on the case, there has to be actual damage.
The damage is physical harm or recognised psychiatric illness. The defendant must have
intended to violate the claimant’s interest in his freedom from such harm. The conduct
complained of has to be such that that degree of harm is sufficiently likely to result that the
defendant cannot be heard to say that he did not “mean” it to do so. He is taken to have meant it
to do so by the combination of the likelihood of such harm being suffered as the result of his
behaviour and his deliberately engaging in that behaviour.

See also Rhodes v OPO [2015] UKSC 32, where it was held that there must
be an actual intention to cause distress to the plaintiff (claim that the
publication of an autobiography by the father of the respondent would cause
severe emotional distress and psychological harm to the child respondent).

7.6 In Carrier v Bonham [2002] 1 Qd R 474, the plaintiff sued in negligence

and under the rule in Wilkinson v Downton for damages for the psychiatric
illness caused by the defendant when, in an attempted suicide, he deliberately
stepped in front of the bus that the plaintiff
 [page 133]

was driving. McPherson JA, with whom Moynihan J agreed, suggested that
the innominate tort based on the decision in Wilkinson v Downton could be
absorbed into the tort of negligence. His Honour stated (at 484):
The feature that is often singled out as peculiar about Wilkinson v Downton is that it was an
intentional act which had reasonably foreseeable consequences that were apparently not in fact
foreseen by the defendant in all their severity; but that is, as R S Wright J pointed out in
Wilkinson v Downton, “commonly the case with all wrongs”. Most everyday acts of what we call
actionable negligence are in fact wholly or partly a product of intentional conduct. Driving a
motor vehicle at high speed through a residential area is an intentional act even if injuring
people or property on the way is not a result actually intended. Wilkinson v Downton is an
example of that kind. The defendant intended to speak the words in question to the plaintiff’s
wife. Even if he did not intend to inflict the harm on her that followed, or perhaps any harm at
all, he was plainly negligent as regards the result that followed. It is only when injury ensues
from inaction or omission to act that problems may still arise at common law about whether the
wrong is, properly speaking, the act or conduct of the defendant. … What matters is whether the
consequences of the conduct, whether foreseen or not, were reasonably foreseeable and are such
as should have been averted or avoided. What we really have now is not two distinct torts of
trespass and negligence, but a single tort of failing to use reasonable care to avoid damage
however caused. Negligence, if narrowly understood, is something of a misnomer.

However, whether this can be taken as actually subsuming the rule of

Wilkinson v Downton could be doubtful as the Court of Appeal did not need
to decide this issue on appeal. Further, decisions since Carrier v Bonham
continue to accept that a separate tort exists: see, for example, Giller v
Procopets (2008) 24 VR 1; Nationwide News Pty Ltd v Naidu (2008) 71
NSWLR 471; Magill v Magill (2006) at [20]; Clavel v Savage [2013] NSWSC
775.

7.7 The Wilkinson v Downton action for intentional infliction of distress

may be rarely used since its creation almost 100 years ago, but it continues to
be of interest as litigants marshal and test out groups of actions to cover
contemporary issues. For example, in Bradley v Wingnut Films Ltd [1993] 1
NZLR 415, a plaintiff sued for the shock and upset caused by the featuring of
the plaintiff’s family tombstone in a film that showed a lot of blood and body
parts.

7.8 As this is an intentional tort, the civil liability legislation will not apply,
removing the limits and threshold requirements in assessing damages for
personal injury; see, for example, Civil Liability Act 2002 (NSW) s 3B (Act
does not apply); Civil Liability Act 2003 (Qld) s 52(2)(a) (exemplary, punitive
or aggravated damages may be awarded); Civil Liability Act 1936 (SA) s 51
(Act does not apply); Civil Liability Act 2002 (Tas) s 3B (Act does not apply);
Civil Liability Act 2002 (WA) s 3A (Act does not apply).

3 Malicious Prosecution
7.9 The tort of malicious prosecution provides protection against
improper use of legal procedures. Malicious prosecution is often linked with
the trespass action of false

[page 134]

imprisonment as both involve restraint of liberty: see 3.46. The distinction

between the two torts is:
for false imprisonment, the restraint of liberty is directly imposed by
the defendant acting personally, or through an agent; and
for malicious prosecution, the restraint of liberty is indirectly imposed
as a result of the defendant supplying false information to an
independent party who then arrests the person.
In Nye v New South Wales (2004) Aust Torts Reports ¶81-725 at 65,264, it
was noted:
Wrongful arrest and false imprisonment and malicious prosecution all involve an abuse of
power. The former involve a deprivation of liberty, something which is regarded by the law as
 serious. Malicious prosecution may or may not involve deprivation of liberty but it exposes the
person the subject of the prosecution to the possibility of injury to reputation and conviction for
a criminal offence. These consequences are also regarded by the law as serious.

7.10 It is arguable that should the Australian High Court abandon

directness in favour of intention in distinguishing trespass actions from
actions on the case, it may not draw the intentional tort of malicious
prosecution within the embrace of trespass, notwithstanding its intentional
nature and the logic of describing it as a trespass if intention is the criterion.
This is because of the long-established independence of the tort and its
elements and the very strong statements distinguishing malicious prosecution
from false imprisonment. The strength in history of the comparative
treatment may be sufficient to survive the rationalisation in any move to
intention.

7.11 In A v New South Wales (2007) 230 CLR 500; 233 ALR 584 at [1], the
High Court stated the elements of the action:
1. that proceedings of the kind to which the tort applies (generally, as
in this case, criminal proceedings) were initiated against the
plaintiff by the defendant;
2. that the proceedings terminated in favour of the plaintiff;
3. that the defendant, in initiating or maintaining the proceedings
acted maliciously; and
4. that the defendant acted without reasonable and probable cause.
As the tort of malicious prosecution is an action on the case, the plaintiff
must have suffered damage and bears the onus of proving the elements.

Proceedings Initiated Against the Plaintiff by the

Defendant
7.12 The defendant must be active in the prosecution of the plaintiff. The
plaintiff’s prosecution must have been counselled, procured or continued by
the defendant: Danby v Beardsley (1878) 43 LT 603; Commonwealth Life
Assurance Society Ltd v Brian (1935) 53 CLR 343.

7.13 A distinction is made between initiating a prosecution and providing

information which leads to the prosecution. If the defendant provides
information and prosecution of the plaintiff is the result, the prosecution is
regarded as having been commenced by the independent lawful authorities.
For example, in Evans v London Hospital and Medical College [1981] 1 All ER
715, a pathologist and toxicologists in a hospital’s forensic

[page 135]

medicine department gave results of a post-mortem to police, who charged

the plaintiff with murder. There was no malicious prosecution because the
police decided to prosecute quite independently of the information provided.
It is necessary that the defendant commit some positive conduct to maintain
the prosecution of the plaintiff, for example give false evidence to support the
prosecution: Sahade v Bischoff [2015] NSWCA 418 at [121]. See also New
South Wales v Landini [2010] NSWCA 157 at [52]–[59].
However, if the prosecutor is unduly influenced by the person providing
the information, that person may be regarded as the true instigator of the
prosecution. In Martin v Watson [1996] AC 74; [1995] 3 All ER 559, a woman
made a complaint to the police that her neighbour had indecently exposed
himself to her. She gave a witness statement and it was recorded that she was
willing to attend court and give evidence. The plaintiff was arrested but at
trial, no evidence was offered by the prosecution and the charge was
dismissed. The House of Lords held (at AC 86–7; All ER 567–8):
Where an individual falsely and maliciously gives a police officer information indicating that
some person is guilty of a criminal offence and states that he is willing to give evidence in court
of the matters in question, it is properly to be inferred that he desires and intends that the
person he names should be prosecuted. Where the circumstances are such that the facts relating
to the alleged offence can be within the knowledge only of the complainant, as was the position
 here, then it becomes virtually impossible for the police officer to exercise any independent
discretion or judgment, and if a prosecution is instituted by the police officer the proper view of
the matter is that the prosecution has been procured by the complainant.

In Mahon v Rahn (No 2) [2000] 1 WLR 2150, a distinction was made

between a simple scenario where a complaint is made to the police, and cases
where evidence is provided from a variety of sources and the police must
exercise a discretion as to whether there is sufficient evidence against the
plaintiff. In a simple case, Brooke LJ thought the following questions needed
to be determined (at [269]):
(1) Did A desire and intend that B should be prosecuted? (2) If so, were the facts so peculiarly
within A’s knowledge that it was virtually impossible for the professional prosecutor to exercise
any independent discretion or judgment? (3) Has A procured the institution of proceedings by
the professional prosecutor, either by furnishing information which he knew to be false, or by
withholding information which he knew to be true, or both?

See also Cumberland v Clark (1996) 39 NSWLR 514 and A v New South
Wales (2007) 230 CLR 500; 233 ALR 584 (involving a public prosecution, not
private).

7.14 Although the tort of malicious prosecution is commonly raised in

regards to criminal prosecutions, the prosecution may include bankruptcy
and winding-up petitions. Traditionally, it has not included civil proceedings,
although this has been questioned: Little v Law Institute of Victoria [1990] VR
257; Lloyd v Fanning (VSC, McDonald J, 4 November 1996, unreported).

Proceedings Terminated in Favour of Plaintiff

7.15 The plaintiff must prove that the prosecution against them was
terminated in their favour. If the proceedings are such that termination in the
plaintiff’s favour is not possible,

[page 136]
for example where the Attorney-General refuses to issue an indictment (nolle
prosequi), an exception is made: Commonwealth Life Assurance Society Ltd v
Smith (1938) 59 CLR 527 at 542. See also Beckett v New South Wales (2013)
248 CLR 432; 297 ALR 206, where the High Court held that a termination of
the prosecution by the Director of Public Prosecutions under a statutory
power could not be distinguished from a termination of the prosecution by
the entry of a nolle prosequi by the Attorney-General. The High Court also
held that when the proceedings are terminated by a nolle prosequi, there is no
need for the plaintiff to prove their innocence in the civil action, overruling
the exception from the decision of Davis v Gell (1924) 35 CLR 275; 31 ALR
49.
If the plaintiff was convicted, this element will fail even if only a bond is
imposed: Everett v Ribbands [1952] 2 QB 198. Similarly, if the plaintiff is
pardoned, this is not termination of the proceedings in the plaintiff’s favour:
Re Royal Commission on Thomas Case [1982] 1 NZLR 252.

Malice
7.16 Malice on the part of the defendant must be established. Malice
means the defendant having any improper motive which may include, but is
not limited to, ill will: Brown v Hawkes [1891] 2 QB 718. In A v New South
Wales (2007) 230 CLR 500; 233 ALR 584 at [91], the High Court stated:
What is clear is that, to constitute malice, the dominant purpose of the prosecutor must be a
purpose other than the proper invocation of the criminal law — an “illegitimate or oblique
motive” (Gibbs v Rea [1998] AC 786 at 804). That improper purpose must be the sole or
dominant purpose actuating the prosecutor (Troridge v Hardy (1955) 94 CLR 147 at 162; [1956]
ALR 15 at 24 per Kitto J; cf Williams v Spautz (1992) 174 CLR 509 at 529; 107 ALR 635 at 648–9
per Mason CJ).

Absence of Reasonable and Probable Cause

7.17 This element involves both an objective and subjective assessment.
There must be reasonable grounds for the institution of the proceedings
against the plaintiff, and the defendant must have had an honest belief in the
propriety of initiating the prosecution: A v New South Wales (2007) 230 CLR
500; 233 ALR 584; Noye v Robbins [2010] WASCA 83 at [116]. This is
assessed on the evidence available at the time the prosecution was
commenced or maintained: A v New South Wales at [59]. However, it is not
necessary that the plaintiff establish their innocence: Commonwealth Life
Assurance Society Ltd v Smith (1938) 59 CLR 527 at 542; Beckett v New South
Wales (2013) 248 CLR 432; 297 ALR 206 at [2].
In A v New South Wales (2007) 230 CLR 500; 233 ALR 584, the appellant
had been acquitted of charges of homosexual intercourse, contrary to s 78H
of the Crimes Act 1900 (NSW). The second respondent, a police officer, was
the informant for the charges. The High Court had to consider whether there
was reasonable and probable cause for the charges against the appellant. It
was noted by the court that the second appellant was performing a public
duty and his conduct was being overseen by other authorities. However, the
court stated (at [38]):

[page 137]

[J]ustice requires that the prosecutor, the person who effectively sets criminal proceedings in
motion, accept the form of responsibility, or accountability, imposed by the tort of malicious
prosecution. In so far as one element of the tort concerns reasonable and probable cause, the
question is not abstract or purely objective. The question is whether the prosecutor had
reasonable and probable cause to do what he did; not whether, regardless of the prosecutor’s
knowledge or belief, there was reasonable and probable cause for a charge to be laid. The
question involves both an objective and a subjective aspect.

Further, the court stated (at [80]):

In cases where the prosecutor acted on material provided by third parties, a relevant question in
an action for malicious prosecution will be whether the prosecutor is shown not to have
honestly concluded that the material was such as to warrant setting the processes of the criminal
law in motion. … In deciding the subjective question, the various checks and balances for which
the processes of the criminal law provide are important. In particular, if the prosecutor was
shown to be of the view that the charge would likely fail at committal, or would likely be
 abandoned by the Director of Public Prosecutions, if or when that officer became involved in
the prosecution, absence of reasonable and probable cause would be demonstrated. But unless
the prosecutor is shown either not to have honestly formed the view that there was a proper case
for prosecution, or to have formed that view on an insufficient basis, the element of absence of
reasonable and probable cause is not established.

Damage
7.18 Damage suffered by the plaintiff is essential because the tort is an
action on the case. The damage must be the result of the malicious
prosecution: New South Wales v Landini [2010] NSWCA 157. However,
damage for malicious prosecution is restricted to:
damage to the person (for example, restraint to liberty);
damage to property (for example, economic loss); and
damage to reputation.
See Berry v British Transport Commission [1962] 1 QB 306.
Costs related to the proceedings are not considered to be damage for the
purposes of the action, unless they relate to the defence of a criminal charge:
Berry v British Transport Commission. In Flower & Hart (a firm) v White
Industries (Qld) Pty Ltd (2001) 109 FCR 280 at [34], it was explained that the
difference in the taxed costs of the proceedings and the actual costs incurred
could not be claimed as:
Where the entitlement to costs has been determined in proceedings, the issue ought not be re-
ventilated in the guise of an action for malicious prosecution.

Remedy
7.19 A plaintiff who establishes the tort of malicious prosecution may be
awarded compensatory damages for the loss resulting from the malicious
prosecution, as well as aggravated and/or exemplary damages: see Chapter
15. It may be possible to be granted injunctive relief if there is evidence of a
continuing threat of malicious prosecution: see National Australia Bank v
McFarlane (2005) Aust Torts Reports ¶81-819.
 [page 138]

4 Privacy
7.20 Concerns as to how the law may protect the privacy of an individual
continue to be high priority in Australia. In light of developing technologies,
for example, the increasing use of remotely piloted aircraft (drones), the
potential to infringe upon a person’s seclusion is ever increasing.1

7.21 In 2014, the Australian Law Reform Commission (ALRC) released its
final report on privacy, Serious Invasions of Privacy in the Digital Era.2 The
report set out nine principles recommended to guide the development of a
policy framework for reform of the law of privacy. It recommended that a
new piece of legislation be enacted that creates a statutory cause of action for
serious invasions of privacy and that the cause of action be a tort:
recommendation 4 (pp 59–72). It is interesting to note that a previous report
in 1983 also proposed the enactment of legislation to protect privacy, but did
not result in any protection for intrusion into a person’s seclusion.3

7.22 Although there is no common law tort of privacy that has been
recognised by an appellate court in Australia, there are various rights that
may be enforced that may have the effect of protecting a plaintiff’s privacy.
For example, there is protection against being harassed and recorded through
various actions (such as trespass and nuisance) as well as legislation
controlling the use of surveillance devices.
In Bernstein v Skyviews & General Ltd [1978] QB 479, the plaintiff’s real
concern was that any photograph taken of his stately home could fall into
criminal hands; by suing for trespass to land, he sought to protect his privacy.
The court held that there was no trespass at the height the aeroplane passed
over the property and there was no right in law to be protected from such
invasions of privacy. Another example is Emcorp Pty Ltd v Australian
Broadcasting Corporation [1988] 2 Qd R 169, where an injunction was
granted to restrain the defendant from broadcasting any of the film videoed at
the plaintiff’s office while the defendant was trespassing.

Development of a Tort of Privacy under the

Common Law
7.23 Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937)
58 CLR 479 is often cited as authority for the proposition that a cause of
action for breach of privacy does not exist in Australia. However, in Church of
Scientology v Woodward (1982) 154 CLR 25 at 68; 43 ALR 587 at 609, Murphy
J observed that ‘unjustified invasion of privacy’ was one of the ‘developing
torts’.
In Victoria Park Racing and Recreation Grounds Co Ltd v Taylor, the
plaintiff claimed an injunction to restrain broadcasting of descriptions of
races which were run on its land but called from a platform erected on
adjoining land. The court was faced with the question

[page 139]

‘How far can one person restrain another from invading the privacy of land
which he or she occupies, when such invasion does not involve actual entry
on the land?’ A majority of the High Court held there was no legal right in the
plaintiff not to be overlooked and, therefore, there was no protection.
However, under statute, there was no unfettered right to broadcast
commercially and the particular broadcasts were subsequently controlled
under the regulatory provisions of the broadcasting legislation.

7.24 The first steps towards the recognition of a possible tort of invasion of
privacy under the common law can be found in the decision of the High
Court in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd
(2001) 208 CLR 199; 185 ALR 1. The respondent operated a fully licensed
abattoir facility where brushtail possums were stunned, slaughtered and
prepared for export to Asian countries. Unknown persons trespassed onto the
property and set up video cameras which were later retrieved by another act
of trespass. A video of the possums being stunned and slaughtered was
offered to the appellant for broadcast on television. The respondent sought an
interlocutory injunction to prevent the broadcast, claiming that the footage
would impact on the company’s goodwill and cause financial harm. It was
claimed that to broadcast the video would be an invasion of the respondent’s
privacy.
The High Court held that the decision of Victoria Park Racing and
Recreation Grounds Co Ltd v Taylor did not stand in the way of the
development of an enforceable right of privacy: at [107] per Gummow and
Hayne JJ. However, the fact that the respondent was a corporation went
against the respondent. The High Court referred to the law of privacy in the
United States where the law does not extend protection to corporations as
‘[t]he tort of invasion of privacy focuses on the humiliation and intimate
personal distress suffered by an individual as a result of intrusive behaviour’:
NOC Inc v Schaefer 484 A 2d 729 (1984) at 730–1, cited in Australian
Broadcasting Corporation v Lenah Game Meats Pty Ltd at [127].

7.25 Since Australian Broadcasting Corporation v Lenah Game Meats Pty

Ltd, the Queensland District Court, in Grosse v Purvis (2003) Aust Torts
Reports ¶81-706, took the ‘bold step’ of being the first court in Australia to
hold that a civil action for damages based on an individual’s right to privacy
exists. Senior Judge Skoien considered that the High Court decision of
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd removed
the barrier said to prevent the finding of such a right. In recognising the tort
of invasion of privacy, his Honour (at [444]) considered that the essential
elements were:
(a) a willed act by the defendant,
(b) which intrudes upon the privacy or seclusion of the plaintiff,
 (c) in a manner which would be considered highly offensive by a reasonable person of
ordinary sensibilities,
(d) and which causes the plaintiff detriment in the form of mental, psychological or emotional
harm or distress or which prevents or hinders the plaintiff from doing an act which he or
she is lawfully entitled to do.

It was noted that the defence of public interest could be available to an

action of invasion of privacy, but not in the case before the court. Damages
for the invasion of privacy were assessed at $108,000. A total of $178,000 was
awarded, including aggravated and exemplary damages. The defendant
lodged an appeal but the matter was settled before being heard.

[page 140]

7.26 The decision of Grosse v Purvis is a decision of a district court, and no

superior court in Australia has yet confirmed the tort, though some have
noted the possibility of the tort: see Maynes v Casey [2011] NSWCA 156 at
[36] (‘case therefore provides an inappropriate vehicle to consider any
possible developments of the law with respect to intentional invasion of
privacy’); Giller v Procopets (2008) 24 VR 1 at [167] (‘The existence of a
generalised tort of unjustified invasion of privacy has not been recognised by
any superior court of record in Australia. The development of such a tort
would require resolution of substantial definitional problems’); Sands v South
Australia [2013] SASC 44 at [614] (‘the ratio decidendi of the decision in
Lenah is that it would require a further development in the law to
acknowledge the existence of a tort of privacy in Australia’).

7.27 Grosse v Purvis was considered in Doe v Australian Broadcasting

Corporation [2007] VCC 281. In that case, the plaintiff had been attacked and
raped by her estranged husband who was charged and later imprisoned for
the crimes. On the day his sentence was handed down, the Australian
Broadcasting Corporation (ABC) broadcast news reports of the sentencing
and identified the plaintiff and her estranged husband by name. The
publication of information, identifying a victim of a sexual offence, was a
breach of s 4 of the Judicial Proceedings Reports Act 1959 (Vic). The plaintiff
sought damages for breach of a statutory duty, negligence, breach of privacy
and equitable compensation for breach of confidence. Hampel J stated that
she also accepted the invitation of the High Court to take the next step, an
incremental one, to develop ‘the recognition of the right to protection against,
or provide remedy for, breach of privacy’: at [162]. The information
published by the ABC was sufficiently personal or confidential, the plaintiff
having a reasonable expectation that the information would remain private.
Publication was also unjustified, there being no public interest in the
publication: at [163]. Damages were awarded for the plaintiff’s post-traumatic
stress disorder caused by the publication and special damages for her past loss
of earnings.

Law Reform
7.28 As noted previously (see 7.21), the ALRC had recommended a
statutory tort of privacy be created: ALRC Report No. 123 (2014). The
Commission recognised that the current law left many gaps or uncertainties
in providing protection against invasion of privacy. For example, a defendant
whose actions infringe a plaintiff’s privacy, and are done with the intention to
cause emotional stress, are not actionable unless the plaintiff suffers a
psychiatric illness: Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 417.
Also, when personal information has been disclosed, emotional distress may
not be considered sufficient to found an action in breach of confidence: see
the discussion in ALRC Report No. 123 (2014) at [3.50].

7.29 The recommendation is ‘that if a statutory cause of action is

introduced, it should be in Commonwealth legislation, as this is the best way
to ensure the action is available and consistent throughout Australia’: ALRC
Report No. 123 (2014) at [4.6]. The proposed statutory action would not be
part of the Privacy Act 1988 (Cth) as that piece of legislation
 [page 141]

is concerned with the regulation of data protection, whereas the proposed tort
of privacy will apply to more than just privacy of information: at [4.9].

7.30 The report recommends that the new tort encompass two types of
interferences:
physical intrusion into the plaintiff’s private space or intrusion by
watching, listening to or recording the plaintiff’s private activities or
affairs; and
misuse of private information, for example through the disclosure or
collection of private information about the plaintiff.
The tort would only apply in circumstances where there is a reasonable
expectation of privacy and when the intrusion is intentional or reckless. The
tort is to be proven only if the invasion of privacy is regarded as serious;
however, the plaintiff does not have to prove damage, overcoming the
difficulties when the consequence of the invasion is emotional stress: see
recommendations 5–8 at pp 9–10.

Other Jurisdictions
7.31 Actions for invasion of privacy have developed in different ways in
New Zealand, the United Kingdom, Canada and the United States. In New
Zealand, a tort of invasion of privacy has been recognised. In Hosking v
Runting [2005] 1 NZLR 1 at [117], it was held that the publication of facts of
the plaintiff’s life could be regarded as ‘highly offensive to an objective
reasonable person’ and was actionable as the tort of invasion of privacy. See
also C v Holland [2012] 3 NZLR 672, where the court held that the tort of
privacy recognised in Hosking v Runting should be extended to include
intentional intrusions upon a plaintiff’s seclusion. In that case, the defendant
had secretly videoed the plaintiff in the shower, intentionally intruding into
her personal space and activity without consent, infringing her reasonable
expectation of privacy and this was considered to be highly offensive to a
reasonable person.
In the United Kingdom, existing actions are being extended to provide
protection in light of the Human Rights Act 1998 (UK), in particular the
action of breach of confidence. In Douglas v Hello! Ltd (No 3) [2008] 1 AC 1;
[2007] 4 All ER 545 at [118], Lord Hoffman stated:
In recent years, English law has adapted the action for breach of confidence to provide a remedy
for the unauthorised disclosure of personal information.

In that case the plaintiffs (Douglas) had contracted with a publisher of a

magazine to provide the exclusive rights to photographs of their wedding. An
unknown person at the wedding took unauthorised photographs which the
publisher of Hello! magazine intended to publish. The plaintiffs sought an
injunction to restrain the publication of the photographs. See also Campbell v
MGN Ltd [2004] 2 All ER 995.
In Canada, some provinces have enacted a statutory tort for invasion of
privacy and in Ontario a common law action was recognised in the decision
of Jones v Tsige (2012) ONCA 32. In the United States, the tort of privacy is
well established, contained in the American Law Institute, Restatement of the
Law Second, Torts (1977) § 652A.

[page 142]

Further Reading
Australian Law Reform Commission, Serious Invasions of Privacy in
the Digital Era, Report No 123, Australian Government, Sydney, 2014.
A Gray, ‘Wilkinson v Downton: New Work for an Old Tort to do?’
(2015) 23 Tort L Rev 127.
 P Handford, ‘Intentional Negligence: A Contradiction in Terms?’
(2010) 32 Sydney Law Review 32.
P Watson, ‘Searching the Overfull and Cluttered Shelves: Wilkinson v
Downton Rediscovered’ (2004) 23 U Tas LR 264.
N Witzleb, ‘A Statutory Cause of Action for Privacy? A Critical
Appraisal of Three Recent Australian Law Reform Proposals’ (2011) 19
TLJ 104.

1. See Parliament of Australia, House of Representatives Standing Committee on Social Policy and
Legal Affairs, Eyes in the Sky: Inquiry into Drones and the Regulation of Air Safety and Privacy,
Commonwealth of Australia, Canberra, 2014, Ch 4.
2. ALRC, Serious Invasions of Privacy in the Digital Era, Report No. 123 (2014).
3. See ALRC, Privacy, Report No. 22 (1983).
[page 143]
 CHAPTER 8

The Negligence Action

1 Introduction
8.1 The tort of negligence has presented a unique challenge for the
common law. It differs from the other torts because the scope of the
protection it affords is not limited by either the interest which it protects or
the particular type of harm it protects against. In comparison, a trespass to
land action is only available where a person’s interest in the possession of land
has been directly challenged, and a defamation action where a person’s
reputation has been impugned. It is because of the all-embracing potential of
the negligence action that there is a need for devices, controlled by the courts,
to limit liability in negligence. Nevertheless, the prominence of the negligence
action today, with its tendency to absorb or eclipse other forms of action, has
led to it being described as ‘that most open-textured and therefore voracious’
of torts.1

8.2 To the person in the street, negligence means no more than

carelessness, but the concept is more complex in law. Negligence, as a legal
concept, is not the same as carelessness because it may consist of advertent as
well as inadvertent acts and omissions.

8.3 The distinguishing feature of the negligence action is that it refers to

conduct which objectively falls short of that required by society. In Tame v
New South Wales (2002) 211 CLR 317; 191 ALR 499 at [8], Gleeson CJ noted:
… in the context of the law of negligence, carelessness involves a failure to conform to a legal
 obligation. It does not necessarily involve a mistake. It involves a failure to protect the interests
of someone with whose interests a defendant ought to be concerned.

The tort is, therefore, not concerned with what the defendant knew, did or
did not do, but what the ‘reasonable person’ in the defendant’s position
would have known or done.

2 The Structure of a Negligence Action

8.4 For the purposes of legal analysis, the negligence action consists of
three elements:
the existence of a duty of care owed by the defendant to the plaintiff;

[page 144]

a breach by the defendant of the standard of care appropriate to that

duty of care; and
damage to the plaintiff caused by the defendant’s breach of the duty,
provided the damage is within the defendant’s scope of liability
(remoteness in law).

8.5 Despite the apparent simplicity of the division of the tort into these
three elements, it must be acknowledged that the distinctions are not always
easy to apply in practice. As Mason P commented in Harriton v Stephens
(2004) 59 NSWLR 694 at [65]–[68], when discussing the contentious issue of
whether disabled children had an action against the doctors whose negligence
deprived the plaintiffs’ parents of the opportunity to terminate the pregnancy:
Any survey of case law and legal commentary in this field shows that discussion is bedevilled by
different views as to the legal concepts that are engaged.

Some authorities speak in terms of strict logic, viewing the outcome as an inexorable
 consequence of applying ostensibly neutral and universal principles of tort law, causation and
compensatory damages. Others recognize the influence of policy.

Some see the issue in terms of causation, others in terms of recoverable damages, others in terms
of identifying the proper plaintiff to recover the damages. Many authorities talk in terms of a
duty of care, although closer examination of this group discloses that some deny duty because of
fundamental problems in assessing damages and/or problems in describing the nature of the
injury inflicted.

Labelling sometimes causes its own problems. These may include suggesting distinctions that do
not exist and eliding those that do.

8.6 Often the parties to the action themselves argue their case in such a
way as to make it difficult to separate out the elements of the action. In Cole v
South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469; 207
ALR 52 at [57], Gummow and Hayne JJ commented that the ‘present
litigation was pleaded and conducted in such a fashion as to conflate asserted
duty and breach of that duty and to make it inappropriate to decide on this
appeal any issue respecting the existence or content of a duty of care’. See also
the High Court decision in Cattanach v Melchior (2003) 215 CLR 1; 199 ALR
131, where the terms of the grant of special leave to appeal restricted the issue
of whether the costs of raising a healthy child, born as a result of the
defendant doctor’s negligence, was recoverable as a head of damages and
allowed no consideration of whether a duty of care was owed in respect to
that kind of damage.

Reasonable Foreseeability
8.7 The situation is complicated by the fact that reasonable foreseeability
has found a role within each of the elements of duty, breach and damage:
a duty is only owed to persons whom it is reasonably foreseeable will
suffer damage by a lack of due care on the part of the defendant;
the standard of care and the defendant’s breach of that standard are
judged against conduct which is reasonable in the context of the
foreseeable risk; and
 compensation will flow only for damage which is a reasonably
foreseeable consequence of the defendant’s negligence.

[page 145]

8.8 However, although reasonable foreseeability arises at three distinct

stages in a negligence action, each element progressively requires a less
abstract and more particular examination of the concept as applied to the
facts of a case. As Glass JA commented in Minister Administering the
Environmental Planning and Assessment Act 1979 v San Sebastian Pty Ltd
[1983] 2 NSWLR 268 at 295, ‘a recognition has emerged that the
foreseeability inquiry at the duty, breach and remoteness stages raises
different issues which progressively decline from the general to the
particular’. His Honour’s comments may be diagrammatically expressed as
follows:

3 Overview of the Elements of the

Negligence Action
Duty of Care
8.9 Until 1883, the element of duty of care was not significant in the
negligence action. A common law duty in negligence only existed where the
law already recognised a special relationship between the parties involving
duties and obligations at common law. Certain relationships still today give
rise to a recognised duty of care. For example, the law recognises that a doctor
owes a duty of care to a patient (Roe v Minister of Health [1954] 2 QB 66) and
that a student will be owed a duty of care by the school authority:
Commonwealth v Introvigne (1982) 150 CLR 258; 41 ALR 577. The
recognised duties of care, often referred to as the ‘established duties’, are
considered in Chapter 9.

8.10 In Heaven v Pender (1883) 11 QBD 503, Brett MR attempted to

provide a general test for duty of care that could be applied to relationships
falling outside of recognised precedent. His Lordship held that when a person
was in circumstances in which they should recognise that the failure to
exercise care and skill would give rise to risk of injury to another, there was a
duty to exercise that care and skill. However, this general test was not adopted
and it was not until the House of Lords’ decision in Donoghue v Stevenson
[1932] AC 562, that a more general test for duty became established law. As
Kirby J commented in Leichhardt Municipal Council v Montgomery (2007)
230 CLR 22; 233 ALR 200 at [99]:
Before Donoghue v Stevenson, that is basically the way in which tort liability, when framed in
negligence, was determined. To discover whether liability existed at law, it was necessary to look
for a case on the given relationship (or judicial authority bearing some similarity).

[page 146]

8.11 The facts of Donoghue v Stevenson [1932] AC 562 were that the
plaintiff and a friend went to a café and the friend bought a bottle of ginger
beer which was manufactured by the defendant. The owner of the café poured
some of the ginger beer into a glass from which the plaintiff drank. When the
last portion of the beer was poured, the remains of a decomposed snail fell
from the bottle. The plaintiff suffered shock at the sight of the snail as well as
gastroenteritis from consuming the contaminated ginger beer. The plaintiff
alleged that the defendant had caused her illness and shock by failing to take
reasonable care in the manufacture of its product. The defendant denied
liability, arguing that the law did not recognise the relationship of
manufacturer and consumer as one giving rise to a duty of care. A majority of
three to two in the House of Lords held that a duty of care was owed even
though the relationship was not a specific one that gave rise to a duty. A
general test for duty of care was established, Lord Atkin’s judgment being the
most famous and most often quoted.
The original and inductive reasoning of Lord Atkin in Donoghue v
Stevenson was an attempt to bring the recognised ‘special relationships’
within a single formula and to provide a unified general principle by which
duty of care cases could be determined in the future. His Lordship therefore
argued (at 580) that:
… in English law there must be, and is, some general conception of relations giving rise to a
duty of care, of which the particular cases found in the books are but instances. The liability for
negligence, … is no doubt based upon a general public sentiment of moral wrongdoing for
which the offender must pay. But acts or omissions which any moral code would censure cannot
in a practical world be treated so as to give a right to every person injured by them to demand
relief. In this way rules of law arise which limit the range of complainants and the extent of their
remedy. 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.

In Australia, the first High Court decision to apply the Lord Atkin formula,
referred to as the ‘neighbour’ principle, was Grant v Australian Knitting Mills
Ltd [1936] AC 85, which involved the plaintiff doctor contracting dermatitis
from sulphur found in a pair of new underpants which had been
manufactured by the defendant and which the plaintiff had not washed before
wearing.

8.12 However, the ‘neighbour’ principle is deceptively simple. It may

identify when a duty may be owed, but it does not determine the nature or
scope of the duty of care. Also, as the test is based upon reasonable
foreseeability, its application may have very wide effect as a simple act of
negligence may expose a defendant to indeterminate liability in terms of time,
damages and number of plaintiffs. To overcome these issues, which arise
when the loss suffered is not physical or a consequence of the physical
damage, attempts have been made to qualify the ‘neighbour’ principle.

8.13 The High Court of Australia has over the years adopted a variety of
approaches to this issue, but as McHugh J stated in Woolcock Street
Investments Pty Ltd v CDG Pty

[page 147]

Ltd (2004) 216 CLR 515; 205 ALR 522 at [45], ‘confusion approaching chaos
has reigned in the law of negligence’. The approach of the High Court to
relationships not within the classes of recognised duties of care, referred to as
‘novel cases’, are discussed in Chapter 10.

Breach of Duty
8.14 The concept of breach in the negligence action is concerned with
whether the defendant achieved the standard of care as required by the law.
The breach element requires that the risk be foreseeable and considers what a
reasonable person would do in response to that risk (calculus of negligence):
Wyong Shire Council v Shirt (1980) 146 CLR 40. The calculus of negligence
involves a consideration of many factors, including the probability of the
harm occurring if precautions were not taken, the possible seriousness of the
harm and whether the defendant could have done anything differently. These
factors are discussed in detail in Chapter 11.

8.15 This element of the negligence action came under scrutiny in the
Review of the Law of Negligence — Final Report2 (the Ipp Report), as the
evidence was that courts had not been correctly considering the issue of
foreseeability. Under the common law, the question of whether the defendant
ought to have taken precautions against a foreseeable risk, was at the level of
risk being more than ‘far-fetched and fanciful’, as laid down by Mason J in the
High Court decision of Wyong Shire Council v Shirt (1980) 146 CLR 40.
However, the Ipp Report found that lower courts had a tendency to find that
it was negligent not to take precautions based upon the risk being reasonably
foreseeable, without taking into account the calculus of negligence: at 7.14. In
New South Wales v Fahy (2007) 232 CLR 486; 236 ALR 406 at [7], Gleeson CJ
stated:
There may be cases where courts have lost sight of the ultimate criterion of reasonableness, or
have adopted a mechanistic approach to questions of reasonable foreseeability, risk
management or risk avoidance … There have been occasions when judges appear to have
forgotten that the response of prudent and reasonable people to many of life’s hazards is to do
nothing.

8.16 The Ipp Report went as far as to say that misapplication of the test in
Wyong Shire Council v Shirt had ‘brought the law of negligence into
disrepute’: at 7.14. As a result, the civil liability legislation in every Australian
jurisdiction adopted the Ipp Report recommendation (recommendation 28)
in relation to breach of the duty of care. A defendant will not be in breach of
their duty of care unless the risk of harm was foreseeable, the risk was not
insignificant and a reasonable person in the position of the defendant would
have taken precautions: see Chapter 11.

Damage
8.17 As an action on the case, a plaintiff cannot succeed in negligence
unless they have suffered damage. As Brennan J stated in John Pfeiffer Pty Ltd
v Canny (1981) 148 CLR 218 at 241; 36 ALR 466 at 484, ‘duty of care is a
thing written on the wind unless damage is

[page 148]

caused by the breach of that duty; there is no actionable negligence unless

duty, breach and consequential damage coincide’. However, there are limits
on what is recognised as damage by the law, and in negligence there are limits
on how far a court will impose liability by reference to policy.

8.18 The damage element requires that the plaintiff has suffered a kind of
damage recognised by the law and that in fact the breach of duty caused the
damage. Further, the kind of damage suffered must be the reasonably
foreseeable consequence of the breach and it must be appropriate that liability
for that damage be imposed upon the defendant (scope of liability).

8.19 Factual causation requires a consideration of whether the plaintiff

would have suffered the damage ‘but for’ the defendant’s breach: March v E &
M H Stramare Pty Ltd (1991) 171 CLR 506; 99 ALR 423. There are various
common law tests for factual causation; however, the civil liability legislation
has legislated that the breach of duty must be a ‘necessary condition of the
occurrence of the harm’ and the High Court has held that this is the ‘but for’
test: Strong v Woolworths Ltd (t/as Big W) (2012) 246 CLR 182; 285 ALR 420.

8.20 Under the common law, a defendant may be liable for all of the
plaintiff’s loss if their breach materially contributed to the loss: Bonnington
Castings Ltd v Wardlaw [1956] AC 613; Fairchild v Glenhaven Funeral
Services Ltd [2002] 3 WLR 89. The Ipp Report identified that this was a
relaxation of factual causation as it allowed causation to be established even
though it could not be proved in the balance of probabilities: at 7.31. Where
there is an ‘evidentiary gap’ and therefore the ‘but for’ test is unsatisfactory,
normative issues come into play, including a consideration of whether the
responsibility of the loss should be imposed upon the negligent party:
recommendation 29. All Australian jurisdictions, except for the Northern
Territory, adopted this approach in the civil liability legislation. The element
of damage is examined in detail in Chapter 12.

4 Questions of Law and Fact

8.21 It is an accepted feature of the common law tradition that questions
of law act as control devices, permitting judges to impose limitations upon
the potential scope of the negligence action. Questions of law, therefore, are
the device through which principles of law are developed and which prevent
the negligence action being frozen in a particular social, economic and
political point of time. It is upon questions of law that precedents are
established.

8.22 Questions of law arise at each of the three stages of a negligence

action:
It is a question of law whether the defendant owes the plaintiff a duty
of care.
The standard of care in the element of breach is determined by the
court as it is a question of law.
Whether liability for the damage should be imposed upon the
defendant as the harm is within the defendant’s scope of liability is a
question of law.

[page 149]
8.23 In contrast, questions of fact (the jury questions) are restricted to the
issues in dispute between the parties in the individual case and have no legal
significance in future cases.

8.24 Another important distinction between questions of fact and of law is

that, on questions of law, an appellate court will not hesitate to overturn a
decision if an incorrect principle of law has been applied, regardless of
whether the trial was held with or without a jury. With questions of fact that
have been decided by a jury, an appellate court may only interfere if the jury
has reached a conclusion which is so strongly against the weight of the
evidence that no reasonable jury could have reached it: Commissioner for
Railways v Small [1957] ALR 529; Calin v Greater Union Organisation Pty Ltd
(1991) 173 CLR 33 at 41; Swain v Waverley Municipal Council (2005) 213
ALR 249. As to the circumstances when new or ‘fresh’ evidence may be
presented on an appeal, see Commonwealth Bank of Australia v Quade (1991)
178 CLR 134; Richards v Forsyth [2007] VSCA 227. See 11.89 for a discussion
of appeals on the findings as to breach of duty, a question of fact.

8.25 The restrictions which apply to an appeal from a question of fact

decided by a trial judge sitting without a jury are less onerous, although an
appellate court will still be hesitant to interfere with a decision where the trial
judge has had the advantage of hearing and observing the witnesses at first
hand. For an example of a Court of Appeal allowing an appeal on the facts,
against a trial judge sitting alone, see Davis v Council of the City of Wagga
Wagga [2004] NSWCA 34 and the High Court decision in Suvaal v Cessnock
City Council (2003) 200 ALR 1.

8.26 However, the significance of the distinction between questions of law

and questions of fact has been eroded by the trend, in recent years, to limit
the availability of jury trials in civil matters. For example, in Queensland,
juries are not available in actions involving damages for personal injury: Civil
Liability Act 2003 s 73.
 Further Reading
R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis
Butterworths, Sydney, 2013, Ch 7.
M K Kirby, ‘Judicial Activism? A Riposte to the Counter-Reformation’
(2004) 24 Aust Bar Rev 219.
H Luntz, D Hambly, K Burns, J Dietrich and N Foster, Torts: Cases and
Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2012, Ch 2.
B McDonald, ‘The Impact of the Civil Liability Legislation on
Fundamental Policies and Principles of the Common Law of
Negligence’ (2006) 14 TLJ 268.
J Stapleton, ‘Cause-in-Fact and the Scope of Liability for
Consequences’ (2003) 119 LQR 388.
—, ‘The Golden Thread at the Heart of Tort Law: The Protection of the
Vulnerable’ (2003) 24 Aust Bar Rev 135.

1. J Stapleton, ‘The Golden Thread at the Heart of Tort Law: The Protection of the Vulnerable’
(2003) 24 Aust Bar Rev 135 at 135; but see also M K Kirby who noted, in 2005, that the ‘imperium
of the law of negligence’ has been wound back: ‘Ten Years in the High Court — Continuity and
Change’ (2005) 27 Aust Bar Rev 4 at 11.
2. Commonwealth of Australia, Review of the Law of Negligence — Final Report (the Ipp Report),
October 2002, available at
<http://www.treasury.gov.au/ConsultationsandReviews/Reviews/2002/Review-of-the-Law-of-
Negligence>.
[page 151]
 Chapter 9

Established Duties of Care

1 Introduction
9.1 In Sullivan v Moody (2001) 207 CLR 562; 183 ALR 404 at [42], the
members of the High Court in a joint judgment stated:
A defendant will only be liable, in negligence, for the failure to take reasonable care to prevent a
certain kind of foreseeable harm to a plaintiff, in circumstances where the law imposes a duty to
take such care.

9.2 A duty of care is ‘a particular and defined legal obligation arising out of
a relationship between an ascertained defendant (or class of defendants) and
an ascertained plaintiff (or class of plaintiffs)’: Roads and Traffic Authority of
New South Wales v Dederer (2007) 234 CLR 330; 238 ALR 761 at [44] per
Gummow J. In Chan v Acres [2015] NSWSC 1885 at [96] it was said, ‘To say
that one person owes another a duty of care is to make a statement about a
legal aspect, or incident, of the relationship between those two people’.

9.3 Duties of care may be classified into two categories:

1. Established duties of care — determined by reference to the
precedents established by similar cases, that is, the law recognises
that certain relationships give rise to a duty of care.
2. Novel duties of care — the facts do not fit within any of the
established duties of care, but as Lord Macmillan stated in
Donoghue v Stevenson [1932] AC 562 at 619, ‘the categories of
negligence are never closed’: see Chapter 10.
 The majority of cases that go before the courts involve established duties of
care. In Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR
254; 176 ALR 411 at [13], Gleeson CJ observed:
Most actions in tort which come before trial courts arise out of relationships in which the
existence of a duty of care is well-established, and the nature of the duty well understood. Cases
arising out of the use of a motor vehicle, or involving employer and employee, or bailor and
bailee, turn upon the application to the facts of well-settled principles concerning legal
responsibility.

Scope of the Duty of Care

9.4 The recognition of a duty of care, established or in a novel situation,
does not impose an all-encompassing duty. Every duty of care is founded
upon the ‘neighbour principle’ —

[page 152]

to take reasonable care so as not to expose the plaintiff to foreseeable risks of

injury — but is not unlimited in scope. Gummow J in Roads and Traffic
Authority of New South Wales v Dederer (2007) 234 CLR 330; 238 ALR 761 at
[43] explained:
… duties of care are not owed in the abstract. Rather, they are obligations of a particular scope,
and that scope may be more or less expansive depending on the relationship in question.
Secondly, whatever their scope, all duties of care are to be discharged by the exercise of
reasonable care. They do not impose a more stringent or onerous burden.

9.5 It is possible that the scope of an established duty is an issue if the facts
of the case are outside the recognised scope. French CJ and Gummow J in
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; 276 ALR
375 at [22] stated:
Different classes of care may give rise to different problems in determining the nature or scope
of a duty of care. In many cases a duty formulated as being one to take “reasonable care” may
suffice for the finding of duty in that particular case. Cases that involve the duty of a solicitor to
 his or her client to exercise professional skill in accordance with the retainer, the duty of a
motorist towards other users of the road, or the duty owed by an occupier of land to an entrant
with respect to the condition of the premises, ordinarily involve no real controversy over the
scope and content of the duty of care; these are considered at the “high level of abstraction”
spoken of by Glass JA in Shirt v Wyong Shire Council [[1978] 1 NSWLR 631 at 639]. But where
the relationship falls outside of a recognised relationship giving rise to a duty of care, or the
circumstances of the case are such that the alleged negligent act or omission has little to do with
that aspect of a recognised relationship which gives rise to a duty of care, a duty formulated at
too high a level of abstraction may leave unanswered the critical questions respecting the
content of the term “reasonable” and hence the content of the duty of care. These are matters
essential for the determination of this case, for without them the issue of breach cannot be
decided. The appropriate level of specificity when formulating the scope and content of the duty
will necessarily depend on the circumstances of the case. [footnotes omitted]

An example of where the scope of an established duty of care had to be

considered is Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205
CLR 254; 176 ALR 411. The appellant owned a shopping centre at which the
respondent was an employee of one of the lessees at the centre. The
respondent was criminally assaulted by three unknown assailants in the
centre’s car park one night when leaving work. The lights for the car park
were not on at the time. The respondent alleged that as occupier, the
appellant owed them a duty of care and had breached the duty by failing to
leave lights on. It was not denied that as the occupier of the shopping centre,
the appellant owed the respondent a duty of care. Gleeson CJ stated (at [17]):
That an occupier of land owes a duty of care to a person lawfully upon the land is not in doubt.
It is clear that the appellant owed the first respondent a duty in relation to the physical state and
condition of the car park. The point of debate concerns whether the appellant owed a duty of a
kind relevant to the harm which befell the first respondent. That was variously described in
argument as a question concerning the nature, or scope, or measure of the duty. The nature of
the harm suffered was physical injury inflicted by a third party over whose actions the appellant
had no control. Thus, any relevant duty must have been a duty related to the security of the first
respondent. It must have been a duty, as occupier of land, to take reasonable care to protect

[page 153]

people in the position of the first respondent from conduct, including criminal conduct, of third
parties.
 The issue to be determined by the High Court was ‘whether, at common
law, a duty of care may be established and extend, in its scope, to the
avoidance of foreseeable risks of injury arising out of the criminal acts of a
third party’ (at [65] per Kirby J) or as Hayne J phrased it, ‘[t]he relevant
question in the present case is not whether an occupier owes some duty of
care to an entrant. The question is what is the extent of the duty which the
occupier owes’: at [102]. A majority of the court (Kirby J in dissent) held that
the scope of the duty of care of the appellant did not extend to taking
reasonable care to prevent injury to lawful entrants to the land by criminal
third parties.

9.6 The High Court has warned of formulating the duty of care with close
reference to the alleged breach. In Kuhl v Zurich Financial Services Australia
Ltd (2011) 243 CLR 361; 276 ALR 375 at [19], French CJ and Gummow J
warned:
… there is an inherent danger in an action in negligence to look first to the cause of damage and
what could have been done to prevent that damage, and from there determine the relevant duty,
its scope and content [Vairy v Wyong Shire Council (2005) 223 CLR 422; 221 ALR 711; Roads
and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; 238 ALR 761; Stuart v
Kirkland-Veenstra (2009) 237 CLR 215; 254 ALR 432].

9.7 The scope or content of the duty must be determined before any
inquiry into breach can be made as otherwise assumptions are made ‘about
the content of the duty of care’ which ‘may fail to take fundamental aspects of
the relationship between the parties into account’: Koehler v Cerebos
(Australia) Ltd (2005) 222 CLR 44; 214 ALR 355 at [19]. See also CAL No 14
Pty Ltd (t/as Tandara Motor Inn) v Motor Accidents Insurance Board (2009)
239 CLR 390; 260 ALR 606.
It is important to define the scope of the duty, be it an established duty or a
novel duty, as it must allow the issue of breach to be determined: Kuhl v
Zurich Financial Services Australia Ltd (2011) 243 CLR 361; 276 ALR 375 at
[22]; Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22; 233
ALR 200 at [8] per Gleeson CJ. See also Romeo v Conservation Commission of
the Northern Territory (1998) 192 CLR 431; 151 ALR 263 at [122]; Schultz v
McCormack [2015] NSWCA 330 at [70]–[74].

Established Duties of Care

9.8 As the law of negligence developed, many relationships were
recognised as giving rise to a duty of care. The established duties of care that
are examined in this chapter are:
occupiers of premises and entrants;
employers and employees;
road users and other road users;
persons and authorities in control of others;
professionals and clients; and
manufacturers of goods and consumers.

[page 154]

2 Occupiers of Premises
9.9 Before the modern concept of negligence started to develop from the
decision of Donoghue v Stevenson [1932] AC 562, the duty of care of an
occupier was dependent upon the class of entrant. Under the old rules, the
following applied:
Contractual entrants The tortious duty required that the premises
were as safe for the contemplated purpose as reasonable care and skill
could make them: Francis v Cockrell; Maclennan v Segar [1917] 2 KB
325; Gribben v Woree Caravan Park and Motels [1970] Qd R 420.
Invitees The duty owed to invitees was ‘that the occupier shall on his
part use reasonable care to prevent damage from unusual danger
 which he knows or ought to know’: Indermaur v Dames (1866) LR 1
CP 274 at 288 per Willes J. Whether something amounted to an
unusual danger depended upon the nature of the danger, the place
where it was found and the activity being undertaken by the particular
invitee: Pinborough v Minister of Agriculture [1974] 7 SASR 493.
Entrants as of right Members of the public entering public premises
or public officials entering private property under the authority of a
statute were owed a duty of care equivalent to that of an invitee or
licensee.
Licensees The duty was only to warn of any unusual or concealed
danger, of which the occupier knew and which would not be obvious
to a reasonably careful entrant: Lipman v Clendinnen; Phipps v
Rochester Corporation [1955] 1 QB 450; Hawkins v Coulsdon and
Purley Urban District Council [1954] 1 QB 319. If the licensee knew of
the danger, then no warning was necessary: Dunster v Abbott [1953] 2
All ER 1572; [1954] 1 WLR 58.
Trespassers At first the duty was only in respect of injuries caused as a
result of wilful default or reckless disregard: Addie v Dumbreck [1929]
AC 358; Mourton v Poulter [1930] 2 KB 183; Edwards v Railway
Executive [1952] AC 737. However, a duty of common humanity
replaced this under which the occupier was expected to act towards
trespassers as would a humane person with the knowledge, ability and
resources of the occupier: British Railways Board v Herrington [1972]
AC 877; Southern Portland Cement Ltd v Cooper [1974] AC 623; (1973)
129 CLR 295; 2 ALR 113.

9.10 These old rules were finally abandoned in Australia by the High
Court in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; 69
ALR 615. As the High Court commented in Thompson v Woolworths (Qld)
Pty Ltd (2005) 221 CLR 234; 214 ALR 452 at [24], in a single joint judgment:
There was a time when the common law sought to define with precision the duty of care owed
 by an occupier of land, and treated the content of the duty as variable according to categories
fixed by reference to the status of entrants. The common law has since rejected the approach of
seeking to construct a series of special duties by reference to different categories of entrant. The
problems involved in the former approach included the rigidity of the classification of entrants,
and the artificiality of distinguishing between the static condition of premises and activities
conducted on the premises. That is not to say, however, that the law now disregards any aspect

[page 155]

of the relationship between the parties other than that of occupier and entrant. On the contrary,
other aspects of the relationship may be important, as considerations relevant to a judgment
about what reasonableness requires of a defendant, a judgment usually made in the context of
deciding breach of duty (negligence). [footnotes omitted]

In Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; 69
ALR 615, the plaintiff slipped in the defendant supermarket’s foyer where the
vinyl-covered floor had become wet due to customers entering the store on a
rainy day. A majority of the High Court held there was no longer any
justification for the continued recognition of the special duties of occupiers,
and all that was necessary was the necessary degree of proximity of
relationship. Mason CJ, Wilson, Deane and Dawson JJ stated (at CLR 487–8;
ALR 620–1):
All 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. The measure of the
discharge of the duty is what a reasonable man would, in the circumstances, do by way of
response to the foreseeable risk.

9.11 As to who is an ‘occupier’, McHugh J commented in Cole v South

Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469; 207 ALR
52 at [30]:
The common law has long recognised that the occupier of premises owes a duty to take
reasonable care for the safety of those who enter the premises. That duty arises from the
 occupation of premises. Occupation carries with it a right of control over the premises and those
who enter them. Unless an entrant has a proprietary right to be on the premises, the occupier
can turn out or exclude any entrant — even an entrant who enters under a contractual right.
Breach of such a contract will give an entrant a right to damages but not a right to stay on the
premises.

In Romeo v Conservation Commission of the Northern Territory (1998) 192

CLR 431; 151 ALR 263 at [15], Brennan CJ explained:
… possession or occupation gives the defendant an ability to safeguard the entrant against
dangers in the condition of the premises. It is not simply possession or occupation of premises
which founds the duty of care but power to determine the terms on which an entrant may enter
and power to safeguard the entrant against dangers in the condition of the premises entered.

Scope of the Duty

9.12 The accepted scope of the duty is that an occupier must take
reasonable care to avoid foreseeable risks of injury to an entrant: Australian
Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; 69 ALR 615; Romeo v
Conservation Commission of the Northern Territory (1998) 192 CLR 431; 151
ALR 263; Neindorf v Junkovic (2005) 222 ALR 631; Roads and Traffic
Authority of New South Wales v Dederer (2007) 234 CLR 330; 238 ALR 761 at
[45]; Strong v Woolworths Ltd (t/as Big W) (2012) 246 CLR 182; 285 ALR 420.
The scope of the duty is influenced by the type of premises occupied by the
defendant. For example, in Sharp v Paramatta City Council (2015) 209
LGERA 220, the duty owed by the defendant, the occupier of a public pool,
was ‘to take reasonable care to avoid foreseeable

[page 156]

risks of injury to persons using the pool’ and ‘[b]eyond that, the scope and
content of the duty depended upon the particular circumstances’: at [4]. See
also Woolworths Ltd v Ryder (2014) 87 NSWLR 593 at [51] (trial judge erred
in holding scope of defendant occupier required it to exercise reasonable care
to ‘obviate any foreseeable danger’ which it should be aware, ‘regardless of
whether the danger might exist within the supermarket itself or in the nearby
common area’).

9.13 In Beardmore v Franklins Management Services Pty Ltd [2003] 1 Qd R

1, the plaintiff was injured at the defendant’s supermarket when a five-year-
old boy in charge of a shopping trolley ran into her. The Court of Appeal held
(at [13]) that the defendant as occupier owed a duty of care as the risk of
injury was foreseeable:
Grocery shopping can be a harrowing experience requiring tolerance, patience, care and some
skill in manipulating wayward trolleys in crowded aisles. But shoppers ought to be protected
from impacts at speed with well-laden, out-of-control trolleys negligently pushed by children or
adults, where the supermarket was or ought to have been aware of the negligent behaviour. Of
course, accidents regularly happen without negligence on anyone’s part. Tired, bored children
and their harassed care-givers are a common enough dynamic of supermarket shopping which
should ordinarily call up the compassion and assistance of fellow shoppers, not complaints. But
if supermarket staff have effective notice of reasonably foreseeable dangerous behaviour from
shoppers or their children, it is the supermarket’s legal obligation to make reasonable attempts
to curb such behaviour which may not only place their shoppers at risk but also their employees.

9.14 However, as noted at 9.5, the scope of the occupier’s duty of care may
be problematic.
In Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234; 214 ALR
452, the appellant regularly delivered bread to the respondent’s store. The
appellant was injured when she tried to move industrial bins that were
blocking her access to the loading dock. The High Court held that the scope
of the duty of care owed by the respondent to the appellant extended to
ensuring that the system for the delivery of goods to its premises did not
expose her to an unreasonable risk of physical injury. The scope of the duty
extended to, not only the static condition of premises to which the deliveries
were made, but also the system of delivery itself. Their Honours held (at [27]):
… the respondent established and maintained a system, and its obligation to exercise reasonable
care for the safety of people who came onto its premises extended to exercising reasonable care
that its system did not expose people who made deliveries to unreasonable risk of physical
injury. A number of aspects of the facilities and procedures for the delivery of goods into the
 respondent’s store might have involved issues of health and safety. Many, perhaps most, of the
people who made the actual deliveries were outside the respondent’s organisation, and were not
subject to the direct control it exerted over its employees. Even so, they were regular visitors to
the premises, for a mutual commercial purpose, and it was reasonable to require the respondent
to have them in contemplation as people who might be put at risk by the respondent’s choice of
facilities and procedures for delivery.

9.15 In Cole v South Tweed Heads Rugby League Football Club Ltd (2004)
217 CLR 469; 207 ALR 52, the High Court considered whether occupiers of
licensed premises owe a duty of care to prevent intoxicated patrons from
leaving the premises, over and above that required by the relevant liquor
licensing legislation. The plaintiff argued, inter alia, that the

[page 157]

defendant club owed her a duty to prevent her from leaving the club when its
employees knew she was intoxicated — she was subsequently found to have a
blood alcohol content of 0.238 per cent. In bringing the action, she was
seeking damages from the club for the injuries she received as a pedestrian
soon after she left the club premises. By a 4:2 majority, the court held either
that the defendant did not owe the plaintiff a duty of care in the terms argued
or that, even if a duty was owed, it had not been breached. For example,
Gleeson CJ stated (at [18]): ‘The consequences of the appellant’s argument as
to duty of care involve both an unacceptable burden upon ordinary social and
commercial behaviour, and an unacceptable shifting of responsibility for
individual choice’. Callinan J (at [130]) endorsed the comments of Heydon JA
in the Court of Appeal (South Tweed Heads Rugby League Football Club Ltd v
Cole (2002) 55 NSWLR 113 at [7]), that:
… if the tort of negligence were extended as far as the [appellant] submitted, it would “subvert
many other principles of law, and statutory provisions, which strike a balance of rights and
obligations, duties and freedoms”.

Only McHugh and Kirby JJ, in dissent, held that the club owed a duty of
care to the plaintiff. As McHugh J (with whom Kirby J agreed on this point at
[91]) described the relationship with the club:
The duty of an occupier is not confined to protecting entrants against injury from static defects
in the premises. It extends to the protection of injury from all the activities on the premises.
Hence, a licensed club’s duty to its members and customers is not confined to taking reasonable
care to protect them from injury arising out of the use of the premises and facilities of the club.
It extends to protecting them from injury from activities carried on at the club including the sale
or supply of food and beverages. In principle, the duty to protect members and customers from
injury as a result of consuming beverages must extend to protecting them from all injuries
resulting from the ingestion of beverages. It must extend to injury that is causally connected to
ingesting beverages as well as to internal injury that is the result of deleterious material,
carelessly added to the beverages: at [31].

9.16 In CAL No 14 Pty Ltd (t/as Tandara Motor Inn) v Motor Accidents
Insurance Board (2009) 239 CLR 390; 260 ALR 606, the appellant claimed
damages from the respondent, alleging that it had been negligent in allowing
her husband to leave its licensed premises and drive his motorcycle when he
was intoxicated. The Tasmanian Court of Appeal had found that the
respondent owed the deceased husband ‘a duty to take reasonable care to
prevent Mr Scott from riding the motorcycle when so affected by alcohol as to
have reduced capacity to ride it safely’: Scott v CAL No 14 Pty Ltd (t/as
Tandara Motor Inn) (No 2) (2007) 17 Tas R 331; 256 ALR 521 at [53]. On
appeal to the High Court, an even more narrow duty was argued — that the
duty of the respondent was to contact the deceased’s wife in order for her to
collect him. The High Court was critical of the Tasmanian Court of Appeal’s
formulation of the duty of care, warning that it was best to avoid arguments
for duty of care based upon the specific facts of the case: at [37]. The High
Court held (at [31]):
There is no doubt that the proprietor and the licensee [the respondent] owed Mr Scott various
duties to take reasonable care — for example, a duty to take reasonable care to ensure that the
premises were physically safe, and a duty to take reasonable care to ensure that equipment in
operation, like gambling machines and kegs, did not injure him.

[page 158]
 However, no duty was owed to the appellant’s husband as:
… persons in the position of the proprietor and the licensee, while bound by important
statutory duties in relation to the service of alcohol and the conduct of the premises in which it
is served, owe no general duty of care at common law to customers which requires them to
monitor and minimise the service of alcohol or to protect customers from the consequences of
the alcohol they choose to consume. That conclusion is correct because the opposite view would
create enormous difficulties … relating to customer autonomy and coherence with legal norms:
at [52].

See also Schuller v S J Nominees Pty Ltd (2015) 124 SASR 152 (appellant
sued hotel in negligence for injuries she suffered when she fell off a chair
while dancing).

Legislation and the scope of duty

9.17 Many Australian jurisdictions have included a statement of the scope
of duty of care of an occupier in legislation. For example, in the Australian
Capital Territory, s 168 of the Civil Liability (Wrongs) Act 2002 provides:
(1) An occupier of premises owes a duty to take all care that is
reasonable in the circumstances to ensure that anyone on the
premises does not suffer injury or damage because of —
(a) the state of the premises; or
(b) things done or omitted to be done about the state of the
premises.
The section expressly replaces the old common law rules as to the duty
owed to the different classes of entrant, but preserves the other common law
rules and any obligation an occupier may have under contract or statute: Civil
Liability (Wrongs) Act 2002 (ACT) s 168(5).
See also Civil Liability Act 1936 (SA) s 20; Wrongs Act 1958 (Vic) s 14B;
Occupiers Liability Act 1985 (WA) s 5. See also Personal Injuries (Liabilities
and Damages) Act 2002 (NT) s 9, which provides an occupier or owner of a
dwelling house or commercial premises does not incur civil liability in
negligence if the plaintiff entered the premises with the intent of committing
an offence punishable by imprisonment.

Warning signs
9.18 The circumstances in which an occupier has a positive duty to
provide warning signs has been considered in a series of High Court cases: see
Nagle v Rottnest Island Authority (1993) 177 CLR 423; 112 ALR 393; Romeo v
Conservation Commission of the Northern Territory (1998) 192 CLR 431; 151
ALR 263; Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; Hoyts
Pty Ltd v Burns (2003) 201 ALR 470; 77 ALJR 1934; Vairy v Wyong Shire
Council (2005) 223 CLR 422; 221 ALR 711; Mulligan v Coffs Harbour City
Council (2005) 223 CLR 486; 221 ALR 764; Roads and Traffic Authority of
New South Wales v Dederer (2007) 234 CLR 330; 238 ALR 761.

9.19 In Roads and Traffic Authority of New South Wales v Dederer (2007)
234 CLR 330; 238 ALR 761, the respondent dived from a bridge into shallow
water, despite the pictogram depicting ‘no diving’, and struck his head.
Gummow J referred to the decisions of Modbury Triangle Shopping Centre
Pty Ltd v Anzil (2000) 205 CLR 254; 176 ALR 411 and Sutherland Shire
Council v Heyman (1985) 157 CLR 424; 60 ALR 1, noting that an occupier’s
duty is to

[page 159]

take reasonable care and that to impose a duty to prevent foreseeable harm to
others would be outside the scope of the duty:
The trial judge and the majority in the Court of Appeal impermissibly reasoned that if a warning
is given, and if the conduct against which that warning is directed continues notwithstanding
the warning, then the party who gave the warning is shown to have been negligent by reason of
the warning having failed. Quite apart from its inconsistency with the scope of the RTA’s duty of
care, this reasoning erroneously short-circuits the inquiry into breach of duty … : at [55].
9.20 In Hoyts Pty Ltd v Burns (2003) 201 ALR 470; 77 ALJR 1934, the
plaintiff was injured in the defendant’s cinema when she momentarily left her
seat to attend to a child and the seat automatically retracted. This action
caused the plaintiff to fall when she attempted to return to her seat. The
plaintiff argued that the scope of the duty owed by the defendant to patrons
included the provision of signs warning of the retracting seats. In finding
against the plaintiff, the majority of the High Court based its decision on the
inference that the presence of a sign would not, in fact, have prevented her
injury. In agreeing with the majority, Kirby J considered the following factors
as being relevant, in the context of the particular circumstances of a case,
when determining whether the duty of care owed by the occupier extends to
the provision of a warning sign:
(1) whether the occupier has an economic or other interest in the entry of the plaintiff; (2)
whether, because of previous incidents, public discussion or otherwise the occupier could be
expected to know of any particular risks against which warnings should be given; (3) whether
there was any hidden feature of the place or activity that might not be plain to an ordinary
entrant but which should be known to, or reasonably discoverable by the occupier, calling for a
warning; (4) whether, if the risk eventuated, the consequences would be likely to be minor or
significant for the person affected; (5) whether the imposition of a requirement to give a notice
could be confined to a particular place or places or would have large implications, costs and
other consequences; and (6) whether the nature of the activity in question was such as to render
the presence of a sign irrelevant to the actual prevention of injury: at [71]. [footnotes omitted]

See also Borland v Makauskas [2000] QCA 521, where the plaintiff sued the
occupiers of the waterfront property at which he had been at a party, for the
injuries he sustained when he dived off a fence into the canal. The Court of
Appeal held that it was not necessary for the occupiers to place signs along
the boundary of their property warning visitors not to dive into the canal. The
risk was held not to be foreseeable and therefore outside the scope of the
occupier’s duty of care: at [13].

Landlords
9.21 Landlords and tenants are in a contractual relationship based on
rights over land and, for this reason, the common law previously treated the
relationship as special. The general rule was that, outside of the contractual
relationship, a landlord owed no duty to a lessee or others on the premises
unless the landlord:
conducted active operations or had undertaken repairs (AC Billings &
Sons Ltd v Riden [1958] AC 240);
fraudulently concealed a defect (Travers v Gloucester Corporation
[1947] KB 71);
was responsible for faulty design (Rimmer v Liverpool City Council
[1985] QB 1); or

[page 160]

the premises were unfurnished when leased but were unfit for
occupation and the injury resulted from their defective state: Charsley
v Jones (1889) 53 JP 280.
In the absence of one of these exceptions, the landlord owed no duty of
care in tort: Cavalier v Pope [1906] AC 428. In Cavalier v Pope, the
unsuccessful plaintiff suffered injuries after falling through dilapidated
flooring which the landlord had promised her husband, as lessee, he would
repair.
The rule in Cavalier v Pope was finally rejected in Parker v South
Australian Housing Trust (1986) 41 SASR 493, which was approved by the
High Court in Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313;
146 ALR 572.

9.22 The relationship of landlord and tenant is considered under the duty
of occupier and entrant due to the meaning of occupation. In Northern
Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 at 336; 146 ALR 572 at 584,
it was explained:
The true bases of the occupier’s duty of care are the power of control which an occupier has to
 consent to another’s entry and the power to safeguard the entrant against injury or loss from
defects in the occupied premises (see Wheat v E Lacon & Co Ltd [1966] AC 552 at 578–9). Yet a
landlord has powers corresponding to those of an occupier to consent to entry into occupation
of the premises by the tenant and those who, to the knowledge of the landlord, are intended to
occupy the premises under and for the purposes of the tenancy and the power to safeguard those
persons against injury or loss from defects that are in the premises at the time when the tenant is
let into possession.

In that case, Brennan CJ held (at CLR 339; ALR 586):

I would hold a landlord to be under a duty of care in respect of the demised premises requiring
the same standard of care as is required of occupiers towards those who enter occupied premises
by consent and for reward, the landlord’s duty of care being (i) limited to defects in the premises
at the time when the tenant is let into possession; and (ii) owed to the tenant and to those who,
to the knowledge of the landlord, are intended to occupy the premises under and for the
purposes of the tenancy.

9.23 The High Court again considered the scope of the duty of care owed
by landlords to tenants and their families in Jones v Bartlett (2000) 205 CLR
166; 176 ALR 137. In that case, the tenant’s son was injured when he put his
knee through an internal glass door in the residential property. The glass in
the door had conformed with the relevant safety standards at the time that the
house was built, but did not comply with the current higher standards
applicable to new houses. The court considered that the decision in Northern
Sandblasting Pty Ltd v Harris (1997) 188 CLR 313; 146 ALR 572 had
expanded the duty of care owed to tenants at common law, although their
Honours varied as to their opinion of the exact content of that expanded
duty.
Gleeson CJ and McHugh and Kirby JJ thought the duty was to take
reasonable care to avoid a foreseeable risk of injury to prospective tenants and
their families. Gaudron J considered that the duty was to take reasonable care
for the safety of the tenants and their families and that this extended to
putting and keeping the premises in a safe state of repair. Callinan J seemed to
consider it sufficient that the premises were in a habitable condition at the
commencement of the tenancy.
 [page 161]

The joint judgment of Gummow and Hayne JJ referred to the comments of

Lord Atkin in Donoghue v Stevenson [1932] AC 562, and asked whether the
relationship between landlord and tenant is so close and direct that the
landlord should be obliged to take reasonable care to ensure the tenant does
not suffer injury. In answering this question, they referred to the fact that,
ordinarily, the landlord will surrender occupation of the premises to the
tenant and so the content of the landlord’s duty is likely to be less than that
owed by an owner–occupier who retains the ability to direct what is done
upon, with and to the premises. Their Honours went on to hold (at [171] and
[173]) that:
Broadly, the content of the landlord’s duty to the tenant will be conterminous with a
requirement that the premises be reasonably fit for the purposes for which they are let, namely
habitation as a domestic residence.

Premises will not be reasonably fit for the purposes for which they are let where the ordinary use
of the premises for that purpose would, as a matter of reasonable foreseeability, cause injury.
The duty requires a landlord not to let premises that suffer defects which the landlord knows or
ought to know make the premises unsafe for the use to which they are to be put. The duty with
respect to dangerous defects will be discharged if the landlord takes reasonable steps to ascertain
the existence of any such defects and, once the landlord knows of any, if the landlord takes
reasonable steps to remove them or to make the premises safe. This does not amount to a
proposition that the ordinary use of the premises for the purpose for which they are let must not
cause injury; it is that the landlord has acted in a manner reasonably to remove the risks.

Liability for the criminal conduct of third parties

9.24 As noted at 9.5, an occupier’s duty of care does not extend to
providing protection against criminal attacks by third parties: Modbury
Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; 176 ALR 411.
There are situations, however, where the occupier is able to exercise control
over access to, or the continued presence of persons on, the premises. In these
circumstances, the scope of the occupier’s duty of care may extend to harm
caused to persons on the premises by the criminal acts of third parties: Adeels
Palace Pty Ltd v Moubarak (2009) 239 CLR 420; 260 ALR 628; Chordas v
Bryant (Wellington) Pty Ltd (1988) 20 FCR 91; 91 ALR 149.
In Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; 260 ALR 628,
the appellant attempted to rely upon the decision of Modbury Triangle
Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; 176 ALR 411 to
establish that it owed no duty of care to the respondent. The respondent and a
patron had been involved in a fight on the dance floor of the appellant’s
premises. The patron left the premises and returned with a gun, shooting the
respondent. The High Court agreed that the decision in Modbury was
relevant when considering whether an occupier owes a duty to prevent
criminal conduct of a third person on the premises. However, the appellant
was as the occupier and business operator of the restaurant, bound by the
provisions of the Liquor Act 1982 (NSW) which included regulation of
conduct on the licensed premises. In a joint judgment, the High Court held
(at [26]):
[The appellant] owed each [respondent] a duty to take reasonable care to prevent injury to
patrons from the violent, quarrelsome or disorderly conduct of other persons. The duty is

[page 162]

consistent with the duty imposed by statute upon the licensee and which was a duty enforceable
by criminal processes. No question arises of translating a statutory power given to a statutory
body into the common law “ought” (compare Pyrenees Shire Council v Day (1998) 192 CLR 330;
151 ALR 147). The duty is not absolute; it is a duty to take reasonable care. It is not a duty
incapable of performance. It is a duty the performance of which is supported by the provision of
statutory power to prevent entry to premises and to remove persons from the premises, if needs
be by using reasonable force. Although it is a duty directed to controlling the conduct of others
(for the avoidance of injury to other patrons) it is a duty to take reasonable care in the conduct
of activities on licensed premises, particularly with regard to allowing persons to enter or remain
on those premises.

See also Club Italia (Geelong) Inc v Ritchie (2001) 3 VR 447. The defendant
club was hosting a debutante ball when violence erupted and a senior police
constable who had been sent to the premises was savagely assaulted in the car
park by some of the patrons. The constable sued the club. In finding for the
plaintiff, Brooking, Charles and Chernov JJA distinguished Modbury, saying
(at [34]–[35]):
The criminals in Modbury were in no sense under the control of the defendant. Its supposed
negligence lay in its failure to light the car park, the lights having evidently been turned off at 10
pm, half an hour before the attack.

Here the ruffian Holton could not properly be described as not under the control of the club. It
did in fact fail lamentably to control him, and this is the only sense in which he was not under its
control. He was allowed to misbehave, out of control, when he should have been kept under
control by the club, which had invited him on to its premises and allowed him to remain there
for the purposes of its business … of conducting social functions on its licensed premises at
which it sold liquor to the patrons.

9.25 The issue of control, or lack thereof, was also decisive in Gordon v
Tamworth Jockey Club Inc (2003) Aust Torts Reports ¶81-698. In that case,
the plaintiff argued that the club was in breach of the duty of care she was
owed as a patron of the club. The alleged duty and breach arose in the context
of an attack on the plaintiff by an intoxicated employee of the club. Despite
the fact that the club knew the employee, a cleaner, was intoxicated and acting
in an unruly manner, this was not sufficient to take the facts outside the
principle laid down by the High Court in Modbury. Sheller JA, with whom
Beazley and Giles JJA agreed, commented that this was not a situation where
members of the public were invited by the club on to the premises in such
numbers and in such circumstances that crowd control, including the
removal of people behaving aggressively, was essential for the safety of others
lawfully on the premises. His Honour concluded, therefore, that the club was
not responsible for the assault by its employee when there was no indication
that he was about to commit a criminal act. The club was also not vicariously
liable for the assault which was clearly outside the cleaner’s scope of
employment: see Chapter 20.
 3 Employers
9.26 The duty of care which an employer owes an employee operates
concurrently with those duties owed to the employee under the contract of
employment. An employment contract contains, as a matter of law, an
express or implied term requiring the employer

[page 163]

to provide a safe workplace: Matthews v Kuwait Bechtel Corporation [1959] 2

QB 57; Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; 65 ALR
1. Failure to provide a safe workplace will be grounds for an action for breach
of contractual duty. In England, it was suggested, in C Czarnikow Ltd v
Koufos [1969] 1 AC 350, that the tortious duty may impose wider liability
than the contractual. This is not the situation in Australia, where the High
Court has held that respect for the coherency of the law requires that, subject
to statutory restrictions, employers and employees should be free to stipulate
the amount of work which an employee agrees to perform under a contract of
employment: Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; 214 ALR
355 at [31].

9.27 There has been considerable development with both courts and
legislatures reflecting the changing political and socioeconomic attitudes of
society in respect of this particular duty of care. Initially, the common law
courts favoured the protection of individual rights and responsibilities which,
in practice, meant the protection of the employer’s rights at the expense of
those of the employee. From the employers’ perspective, this meant that,
during the early years of the Industrial Revolution, they were not burdened
with the overhead costs associated with workplace injuries and deaths.
Instead, these costs were borne by the individual worker. To give just one
example of the extent of workplace injury, in the last quarter of the 19th
century, almost 13,000 workers were recorded as killed at work and almost
69,000 injured in the English railways industry alone.1

9.28 As the 19th century progressed, however, it became increasingly

recognised that employers were, in fact, better placed to bear and spread the
cost of workplace accidents and that the loss should not simply be left where
it fell, that is, on the injured employee. The result was the growth of a political
movement calling for ‘the cost of the product to bear the blood of workers’.
Three developments flowed from these changes:
The first development was the diluting of what was called the ‘unholy
trinity’ of defences which strongly favoured employers. The three
defences were common employment, voluntary assumption of risk and
contributory negligence. The common employment defence was based
upon a fictitious, implied term in the contract of service that the
servant (as employees were then called) agreed to run the natural risks
of employment, including harm caused by the negligence of fellow
servants: Priestley v Fowler (1837) 3 M & W 1; 150 ER 1030. In its most
extreme form, this included the negligence of managerial staff
supervising the activities of manual labourers: Hutchinson v York,
Newcastle & Berwick Railway Company (1850) 5 Exch 343; 155 ER 150.
The defence has now been abolished in all Australian jurisdictions.
The second development was the passing of the legislation which was
the forerunner of today’s occupational, or workplace health and safety
legislation, for example the Factories Amendment Act 1844 (UK) and
the Victorian Supervision of Workrooms and Factories Act 1873. This
legislation not only provided for state-imposed sanctions on dangerous
work practices, but also often provided workers with an action for
breach of statutory duty against their employers: see Chapter 18.

[page 164]
 The third development was the introduction of workers’ compensation
legislation, for example the Workmen’s Compensation Act 1897 (UK).
The distinguishing feature of workers’ compensation legislation is that
workers who are injured, or have their health impaired, are
compensated without the need to prove that their employer was at
fault. All that generally is required is that there is a causal or temporal
link between their injury and their employment.

9.29 Therefore, an employee may be compensated in the following ways:

an action in negligence against the employer based upon the personal
duty of care owed by the employer;
access compensation through the employer’s workers’ compensation
insurance scheme;
an action in negligence against the employer, based upon the
employer’s vicarious liability, if injured by another employee’s tort (see
Chapter 20);
an action in breach of statutory duty based upon the occupational
health and safety legislation (see Chapter 18); and
an action in breach of contract for breach of the implied terms to
provide a safe workplace.
See also 9.47 regarding the employer’s non-delegable duty of care.

9.30 Actions in negligence by employees are not common as the workers’

compensation schemes in each jurisdiction provide an easier path for
compensation for personal injury: see 9.54.

9.31 It should be noted that an employer of an independent contractor will

owe a duty of care; however, its scope may differ to that of the content of the
duty owed to an employee. In Leighton Contractors Pty Ltd v Fox (2009) 240
CLR 1; 258 ALR 673 at [52], the High Court pointed out that to impose a duty
in the same terms as is owed to an employee in respect of the safe system of
work, would be ‘inconsistent with maintenance of the distinction that the
common law draws between the obligations of employers to their employees
and of principals to independent contractors’.

Scope of the Duty

9.32 At common law, an employer owes a duty to its employees to take
reasonable care to carry on its business in such a way as to not subject
employees to unnecessary and foreseeable risks of injury: Smith v Charles
Baker & Sons [1891] AC 325; Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR
18 at 25; Rae v Broken Hill Proprietary Co Ltd (1957) 97 CLR 419 at 430;
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 307; 65 ALR 1
at 5.

9.33 The duty owed is a single duty but, for the purpose of legal analysis, is
traditionally divided into the three headings:
proper selection of skilled persons to manage and superintend the
business (Butler v Fife Coal Co Ltd [1912] AC 149);

[page 165]

provision and maintenance of proper plant and equipment (Wilsons &

Clyde Coal Co Ltd v English [1938] AC 57); and
provision of a safe system of work: Neill v New South Wales Fresh Food
& Ice Pty Ltd (1963) 108 CLR 362; Qualcast (Wolverhampton) Ltd v
Haynes [1959] AC 743.

9.34 An employer’s duty only encompasses foreseeable risks. In Visser v

South Australian Housing Trust (1995) 65 SASR 571, the defendant was held
to have owed no duty of care to the employee telephonist who was injured
when a customer blew a whistle into a telephone headset she was using. The
majority of the South Australian Court of Appeal held that, given the
unlikelihood of such an incident occurring and that there was little general
knowledge of the availability of a sound-limiting device, no duty of care was
owed to require the use of headsets or to fit the device to all telephones.
In respect of those hazards which are foreseeable but cannot be avoided by
the exercise of reasonable care and skill, the employee may have to accept the
risk: Key v Commissioner for Railways (1941) 64 CLR 619; Nair v Health
Administration Corporation (1994) Aust Torts Reports ¶81-312.
It has been stated that ‘the content of the duty of care is not at large but
needs to being into account the contract that existed between parties’:
Woolworths Ltd v Perrins [2015] QCA 207 at [42]. In D’Amico v Calavary
Hospital Auxiliary Inc [2013] ACTSC 259, it was pointed out that the fact that
the employer is a not-for-profit organisation does not alter the duty owed to
its employees.

9.35 As noted previously, issues may arise as to the scope of an established

duty. In employment scenarios, a common issue about the duty of care is
when the damage suffered by the employee is psychiatric injury that is not a
consequence of any physical damage: see Koehler v Cerebos (Australia) Ltd
(2005) 222 CLR 44; 214 ALR 355; Mount Isa Mines Ltd v Pusey (1970) 125
CLR 383. Such claims are not within the established duty of an employer and
are novel: see 10.40ff.

Selection of competent staff

9.36 An employer is required to exercise reasonable care and skill in the
selection of competent supervisory staff (Butler v Fife Coal Co Ltd [1912] AC
149) and to ensure that the staff is properly trained to carry out their duties.
The employer is also required to maintain discipline among staff and,
ultimately, to dismiss an employee who is a danger to other employees.

Plant and equipment

9.37 This part of the employer’s duty encompasses the work site,
machinery and equipment. For example, the work site must be a safe place to
work. In Whitton v New South Wales [2005] NSWCA 97, the workplace, a
classroom, was not safe due to the loose computer cables which caused the
plaintiff to trip.

9.38 If the employee is required to attend premises not occupied by the

employer, the employer may still be liable: Wilson v Tyneside Window
Cleaning Co [1958] 2 QB 110;

[page 166]

ACI Metal Stamping & Spinning Pty Ltd v Boczulik (1964) 110 CLR 372. In
Smith v Austin Lifts Ltd [1959] 1 WLR 100 at 117, Lord Denning held:
… employers who send their workmen to work on the premises of others cannot renounce all
responsibility for their safety. The employers still have an over-riding duty to take reasonable
care not to expose their men to unnecessary risk. They must, for instance, … if they know or
ought to know of a danger on the premises to which they send their men, they ought to take
reasonable care to safeguard them from it. What is reasonable depends, of course, on the
circumstances.

See also Sinclair v William Arnott Pty Ltd; Kell & Rigby Pty Ltd (Third
Party) (No 2) (1963) 64 SR (NSW) 88 at 92.

9.39 In DIB Group Pty Ltd t/as Hill & Co v Cole [2009] NSWCA 210, the
court noted that the duty to provide proper plant and equipment will operate
differently in respect of premises over which the employer has no control.
Basten JA stated (at [54]):
Where the safety of premises is at stake, as in this case, it is appropriate to ask quite specific
questions with respect to what may be expected of an employer exercising reasonable care for
the safety of its employees. For example, is it reasonable for the employer to request or require
access to premises to carry out its own safety inspection? Is it necessary (and sufficient) if the
employer inquires of the occupier what steps it has taken to conduct such an assessment? Is it
 necessary (and sufficient) for the employer to inquire in specific terms of its own employees as
to the nature of the conditions they encounter at other premises?

9.40 Where the employer is also the occupier, the employee may be
entitled to rely upon the breach of the duty of his or her employer, both as
employer and as occupier.

9.41 This component of the duty requires that the employer exercise
reasonable care in the provision, maintenance and repair of plant and
equipment: TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1 at [61];
Smith v Brambles Australia Ltd [2011] NSWSC 963. Therefore, an employer
must:
ensure that the employee is able to use any equipment or machinery
safely which may require training and instruction;
provide suitable equipment (see Fuller v New South Wales Department
of School Education and Training (2004) Aust Torts Reports ¶81-756
where the ladder supplied to the employee was unsuitable); and
have reasonable inspection and maintenance systems in place: see
Bourk v Power Serve Pty Ltd [2008] QSC 29, where the court held the
lack of inspection was reasonable as the equipment provided to the
plaintiff was new and usually lasted for years.

9.42 Liability for defects in equipment will arise only if such defects,
including those due to the negligence of the manufacturer, could have been
discovered by the exercise of reasonable care: TNT Australia Pty Ltd v
Christie (2003) 65 NSWLR 1; Davie v New Merton Board Mills Ltd [1959] AC
604 (latent defect in tool provided by employer); Bellambi Coal Co Ltd v
Murray (1909) 9 CLR 568. In James Thane Pty Ltd v Conrad International
Hotels Corp [1999] QCA 516, the court found that the appellant, the employer
of injured trapeze

[page 167]
artists, was liable for its failure to carry out inspections of the trapeze
equipment. The respondent was also liable as it had constructed, operated
and maintained the equipment on premises it managed for Jupiters Casino at
the Gold Coast.

Safe system of work

9.43 Although the duty requires an employer to provide and maintain a
safe system of work, what is meant by a ‘safe system’ has to be decided with
reference to the particular case and is not capable of general definition: Speed
v Thomas Swift & Co Ltd [1943] KB 557; and see Hughes v South Australia
(1982) 29 SASR 161. A ‘safe system’ may be:
the provision of instruction (see, for example, Tabcorp Holdings Ltd v
Dank [2011] QCA 253, where the employer had not instructed the
employee on correct lifting techniques);
particular equipment to help with the tasks involved (see, for example,
Pacific Steel Constructions Pty Ltd v Barahona [2009] NSWCA 406,
where the employer did not provide the employee with ‘the tools and
equipment reasonably necessary to safely carry out the work which he
was directed to do’: at [128]);
a warning (see, for example, Hughes v SDN Children’s Services Inc
[2002] NSWCA 11, where the employer, a childcare centre, had not
warned the employee of the dangers of contracting cytomegalovirus (a
virus common among children) when pregnant); or
supervision of the system of work to ensure it is correctly implemented
to ensure there is no increased risk of harm: see McGreevy v Cannon
Hill Services Pty Ltd [2016] QSC 29 (defendant’s production line
processes and supervision not reasonable).

9.44 If an employee is harassed, bullied or assaulted by a fellow employee,

this may also be a failure of an employer to provide a safe system of work if
such behaviour is foreseeable: Nationwide News Pty Ltd v Naidu (2007) 71
NSWLR 471 at [25]. As the plaintiff often suffers a psychiatric injury as a
result of harassment and bullying, consideration of the foreseeability of the
harm is required in such cases, as noted in 9.35.

9.45 The employer’s obligation to provide a safe system of work is not

static but includes anticipating carelessness in compliance by employees:
Czatyrko v Edith Cowan University (2005) 214 ALR 349. As the High Court
stated in McLean v Tedman (1984) 155 CLR 306 at 313; 56 ALR 359 at 364:
The employer’s obligation is not merely to provide a safe system of work; it is an obligation to
establish, maintain and enforce such a system. Accident prevention is unquestionably one of the
modern responsibilities of an employer … And in deciding whether an employer has discharged
his common law obligation to his employees the court must take account of the power of the
employer to prescribe, warn, command and enforce obedience to his commands.

9.46 If the employee is working at a third party’s premises, the employer

still is responsible for maintaining a safe system of work: Smith v Austin Lifts
Ltd [1959] 1 WLR 100 at 117; Vincent v Woolworths Ltd [2016] NSWCA 40.
In South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8, it
was noted that an employer’s duty included taking reasonable steps to ensure
that the safe system of work was adopted by its employees at other premises.

[page 168]

If an employee is injured at another’s premises, there would also be the

possibility of an action in negligence against the occupier of those premises.

Non-delegable duty
9.47 The duty of care owed by an employer to employees is regarded by
the common law as being one of those special duties which cannot be
delegated. Therefore, for example, the employer will remain liable even where
‘the system of work was devised, in part, by an employee who was
subsequently injured as a result of carrying out the system’: Andar Transport
Pty Ltd v Brambles Ltd (2004) 217 CLR 424; 206 ALR 387 at [54]. An
employer’s duty to take care is also a duty to ensure that care is taken: Kondis
v State Transport Authority (1984) 154 CLR 672; Stevens v Brodribb
Sawmilling Co Pty Ltd (1986) 160 CLR 16; 63 ALR 513. See also Chapter 20.

Legislation
Occupational health and safety
9.48 The first English factory legislation — the Health and Morals of
Apprentices Act 1802 — attempted, with little success, to regulate the
working hours and conditions of apprentice pauper children in the cotton
mills. It was the Factory Regulation Act 1833 and the Factories Amendment
Act 1844, however, which initiated the avalanche of safety statutes imposing
specific duties upon employers. Such legislation provided a right of action in
tort for breach of statutory duty (see Chapter 18) to which the doctrine of
common employment did not apply (Groves v Lord Wimborne [1898] 2 QB
402), as well as providing an important base for determining standards of
care.

9.49 Today there is a wide range of statutory regulations imposing detailed

duties on employers, including the national uniform legislation for safety in
the workplace which came into effect on 1 January 2012 in every jurisdiction
except for Victoria and Western Australia. See Work Health and Safety Act
2011 (Cth); Work Health and Safety Act 2011 (ACT); Work Health and
Safety Act 2011 (NSW); Work Health and Safety (National Uniform
Legislation) Act 2011 (NT); Work Health and Safety Act 2011 (Qld); Work
Health and Safety Act 2012 (SA) (1 January 2013); Work Health and Safety
Act 2012 (Tas) (1 January 2013). In Victoria and Western Australia the
uniform legislation has not been adopted: Occupational Health and Safety
Act 2004 (Vic); Occupational Safety and Health Act 1984 (WA).
9.50 The national uniform legislation imposes general duties upon persons
conducting a business or undertaking to ensure the health and safety of
workers so far as is reasonably practicable, by eliminating or minimising risks
to health and safety so far as is reasonably practicable. Under the national
uniform legislation, a person conducting a business or undertaking has
specific duties imposed upon them (see ss 19–26) to:
provide and maintain a work environment without risks to health and
safety;
provide and maintain safe plant and structures;
provide and maintain safe systems of work;

[page 169]

ensure safe use, handling, storage and transport of plant, structures

and substances;
provide adequate facilities for the welfare of workers at work in
carrying out work, including ensuring access;
provide any information, training, instruction or supervision that is
necessary to protect all persons from risks to their health and safety
arising from work carried out; and
monitor workers and the conditions at the workplace for the purpose
of preventing illness or injury of workers arising from the conduct of
the business or undertaking.

9.51 Some workplaces are not within the operation of the national uniform
legislation. For example, in Queensland the Work Health and Safety Act 2011
does not apply to aviation safety, coal mining (Coal Mining Safety and Health
Act 1999 (Qld)), prescribed railway operations where the Transport
Operations (Rail Safety) Act 2010 applies, and operating plants governed by
the Petroleum and Gas (Production and Safety) Act 2004.
9.52 The national uniform legislation provides for different categories of
offences (see ss 31–33), for example ‘category 1’ being a criminal offence
(person with the duty recklessly exposes a person to a risk of death or serious
injury or illness). In Queensland, a ‘category 1’ offence results in a penalty of
$3 million for a corporation, $600,000 and/or five years imprisonment for a
person conducting a business or $300,000 and/or five years imprisonment for
a worker. The legislation does not affect civil liability (s 267), and therefore
non-compliance with the Act or regulations may entail liability both under
the civil law for breach of the statutory duty (see Chapter 18) and under the
criminal law. Breach of the legislation may, furthermore, be relied upon as
evidence of negligence in an ordinary common law action based upon breach
of the common law duty of care: Waugh v Kippen (1986) 160 CLR 156; 64
ALR 195; Sheen v Fields Pty Ltd (1984) 51 ALR 345; 58 ALJR 93.

Workers’ compensation
9.53 The first workers’ compensation legislation was introduced in
Germany by Chancellor Bismarck in 1884. The first English legislation, the
Workmen’s Compensation Act 1897, made the employer a compulsory
insurer against loss of wages from work-related injuries because it permitted
recovery of compensation without proof of fault. Under the Act, and its
successors of 1906 and 1925, the employee was required to elect either
compensation payments under the legislation or the common law right of
action, but could not take the benefit of both. Under the English National
Insurance (Industrial Injuries) Act 1946, the state became the insurer in place
of the employers and no election was required.

9.54 Under the Australian legislative schemes, a worker receives a fixed

measure of statutory compensation for injuries arising out of or in the course
of employment. There is a high degree of standardisation of benefits under
the Acts and their Schedules. The benefits are paid irrespective of the
employer’s or employee’s fault, or of the age, experience of the employee, or
the impact of the injury and are not designed to give full compensation. The
major categories of benefits are death benefits (including funeral expenses),
medical expenses (including those associated with, often mandatory,
rehabilitation) and lump sum awards based on a table of injuries.

[page 170]

See Safety, Rehabilitation and Compensation Act 1988 (Cth); Workers’

Compensation Act 1951 (ACT); Workers Compensation Act 1987 (NSW)
and Workplace Injury Management and Workers Compensation Act 1998
(NSW); Return to Work Act 1986 (NT); Workers’ Compensation and
Rehabilitation Act 2003 (Qld); Return to Work Act 2014 (SA); Workers’
Rehabilitation and Compensation Act 1988 (Tas); Workplace Injury
Rehabilitation and Compensation Act 2013 and Accident Compensation Act
1985 (Vic); Workers’ Compensation and Injury Management Act 1981 (WA).

9.55 The advantage of the legislation is that an employee will receive

workers’ compensation payments without undue delay because there is
usually no dispute as to entitlements. However, most of the legislative
schemes exclude injuries which are caused by the worker’s own serious or
wilful misconduct. Since, in most serious cases, the statutory compensation is
less than full compensation, the employee will later, if legislatively possible,
proceed under a common law tort action to obtain the balance necessary for
full compensation. Where a common law action is permitted, any
compensation paid becomes a charge on the common law damages
recovered.

9.56 Having a number of workers’ compensation schemes in Australia (the

Commonwealth has separate schemes for seafarers and military personnel)
leads to many inconsistencies between the different jurisdictions in terms of
funding, the level of entitlements and access to the common law. Today
workers and businesses are much more mobile than they were before and
such inconsistencies are becoming more important. Despite the proposal to
develop a national policy relating to workers’ compensation as has been done
for work health and safety (see Safe Work Australia Act 2008 (Cth)), this has
not yet occurred.

4 Road Users
9.57 It is well established that a duty of care is owed by every user of the
road to every other road user, as well as to persons and property adjacent to
the road: Edwards v Noble (1971) 125 CLR 296; Loveday v Paddison [1965]
Qd R 535; Manley v Alexander (2005) 223 ALR 228; 80 ALJR 413; Imbree v
McNeilly (2008) 236 CLR 567; 248 ALR 647.
Even a police driver may owe a duty to a person who is being pursued
because they are suspected of driving a stolen vehicle: Marshall v Osmond
[1983] QB 1034. In Zanner v Zanner (2010) 79 NSWLR 702, the court held
that the High Court decision of Imbree v McNeilly supported the proposition
that a child of any age would owe a duty of care while driving a car. In that
case the appellant driver was 11 years old and injured his mother, the
respondent, as he drove the family car into the carport as she supervised from
outside of the car.

9.58 No doubt, knowledge of the existence of compulsory third party

personal injury insurance has played an influential role in fostering the ready
finding of duties of care owed by motor vehicle drivers. Compulsory third
party insurance also means that this particular duty category is the most
significant in terms of the quantity of litigation in those jurisdictions where
litigation has not been substantially modified by statute.

9.59 The courts have also had to grapple with complications such as harm
to unborn children arising from motor vehicle accidents. It is now well
established that a third party
 [page 171]

will owe a duty to an unborn child injured in a motor vehicle accident: Watt v
Rama [1972] VR 353. Similarly, where the mother is the driver of the motor
vehicle, she will owe a duty of care to her unborn child: Lynch v Lynch (1991)
25 NSWLR 441; Bowditch v McEwan (2002) 36 MVR 235. However, in both
situations, the unborn child’s right to sue for pre-birth injuries only vests
when the child is born alive: Burton v Islington Health Authority [1993] QB
204.

9.60 However, most disputes occur, not in relation to the existence of a

duty of care, but, rather, as to the appropriate standard of care owed, whether
the duty has been breached, and the apportionment of damages: see, for
example, Insurance Commissioner v Joyce (1948) 77 CLR 39; Van den Heuvel
v Tucker (2003) 85 SASR 512; Anikin v Sierra (2004) 211 ALR 621; 79 ALJR
452; Imbree v McNeilly (2008) 236 CLR 567; 248 ALR 647.

9.61 If a motor vehicle accident takes place on someone’s property, then

the relevant relationship for the duty of care may not be that of a road user.
For example, motor vehicle accidents occur in the course of off-road and rally
events, and occupiers of the premises or organisers of such events may owe
duties of care to ensure the design of courses and signage are appropriate for
a sport which carries with it built-in dangers: Wattleworth v Goodwood Road
Racing Company Ltd [2004] EWHC 140 (duty as occupier); Emmett v
Manning [1985] 40 SASR 297; Macarthur Districts Motor Cycle Sportsmen Inc
v Ardizzone (2004) 41 MVR 235.
See also Simpson v Grundy [2011] QSC 299, where the plaintiff was injured
when she overturned the car while driving on the defendant’s property. She
was driving on a dirt road that was in good condition, with the permission of
her stepfather and grandmother, but was driving fast and was 17 years old.
The court was of the opinion that the case was not related to the duty of an
occupier, but the duty of supervision.

Scope of the Duty

9.62 The scope of the duty of care of a driver of a motor vehicle is to take
reasonable care to avoid foreseeable risks to other road users: Davies v
Tomkins [2009] WASCA 2 at [67]. In Bourhill v Young [1943] AC 92 at 104,
Lord Macmillan, referring to the judgment of Lord Jamieson in the court
below, commented:
… “the duty of a driver is to use proper care not to cause injury to persons on the highway or in
premises adjoining the highway …” Proper care connotes avoidance of excessive speed, keeping
a good look-out, observing the traffic rules and signals and so on.

In Manley v Alexander (2005) 223 ALR 228; 80 ALJR 413 at [12],

Gummow, Kirby and Hayne JJ held:
the reasonable care that a driver must exercise when driving a vehicle on the road requires that
the driver control the speed and direction of the vehicle in such a way that the driver may know
what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those
events.

9.63 A pedestrian is also a road user and therefore owes a duty of care to
others on the road. In Heywood v Miller [2005] ACTSC 4 at [19], the court
held that a pedestrian was ‘under a duty to take reasonable care to ensure that
he or she is not struck by a moving vehicle’.

[page 172]

9.64 In French v QBE Insurance (Australia) Ltd (2011) 58 MVR 214, the
plaintiff sued the taxi driver who left her partner, intoxicated, at the side of a
road. After being left, the plaintiff’s partner was lying on a carriageway and
was hit by a vehicle and killed. The plaintiff argued that the taxi driver owed a
duty of care ‘to exercise reasonable care in and about, and incidental to the
conveyance of [the] taxi passenger in respect of any reasonably foreseeable, in
the sense of not far-fetched or fanciful, or alternatively not insignificant risk
of injury to [the taxi passenger] arising out of the conveyance’: at [67]. The
recognised scope of the duty is to exercise reasonable care for the safety of
passenger: Crofts v Waterhouse (1825) 3 Bing 319; [1825] ER 809.

Legislation
9.65 Legislation schemes exist in all Australian jurisdictions in respect of
motor vehicle accidents. The legislation does not impose any duty of care
upon drivers but is for the purpose of achieving compensation for personal
injury arising from the use of motor vehicles. Fault-based schemes exist in the
Australian Capital Territory, New South Wales, Queensland, South Australia
and Western Australia. In general terms, these schemes operate with the
common law, imposing procedures upon claims for compensation and
limiting the types of damages that may be claimed. The legislation imposes
compulsory third party insurance upon owners of motor vehicles which then
insures any person who drives the vehicle against liability for death or
personal injury caused by their fault: Road Transport (Third Party Insurance)
Act 2008 (ACT); Motor Accidents Compensation Act 1999 (NSW); Motor
Accident Insurance Act 1994 (Qld); Motor Vehicles Act 1959 (SA); Motor
Vehicle (Third Party Insurance) Act 1943 (WA).

9.66 The Northern Territory, Tasmania and Victoria have no-fault

compensation schemes which indemnify liability for motor vehicle accidents
for personal injury if the requirements of the legislation are met: Motor
Accidents (Compensation) Act 1979 (NT); Motor Accidents (Liabilities and
Compensation) Act 1973 (Tas); Transport Accident Act 1986 (Vic).

5 Persons in Control of Others

9.67 At common law, the traditional distinction between misfeasance and
nonfeasance has meant that there is no duty to control another’s actions so as
to prevent injury to a third party. There are, however, exceptions to this
general principle. As Dixon J commented in Smith v Leurs (1945) 70 CLR 256
at 262:
The general rule is that one man is under no duty of controlling another man to prevent his
doing damage to a third. There are, however, special relations which are the source of a duty of
this nature.

9.68 A person in control of others may also owe the persons themselves an
affirmative duty of care to ensure that they come to no harm. Recognised
duties of care due to control are imposed upon:
school authorities;
parents of young children; and
prison authorities.

[page 173]

School Authorities and Students

9.69 By law, parents are required in most Australian jurisdictions to have
their children attend full-time education until reaching the first of a specified
age or completion of a specified grade: Education Act 2004 (ACT) s 9 (17
years or completes grade 12); Education Act 1990 (NSW) s 21B(3) (17 years
or completes grade 10); Education Act 1979 (NT) s 38(2) (or completes grade
10); Education (General Provisions) Act 2006 (Qld) s 9 (16 years or completes
grade 10); Education Act 1972 (SA) s 75(2a) (16 years); Education Act 1994
(Tas) s 4(1) (16 years); Education and Training Reform Act 2006 (Vic) s 1.1.3
(17 years); School Education Act 1999 (WA) s 6 (17 years and 6 months).

9.70 When a student is at school, the school is in control and acting in

place of the parent or guardian: Ramsay v Larsen (1964) 111 CLR 16; [1964]
ALR 1121. In Richards v Victoria [1969] VR 136 at 138, it was explained that:
The reason underlying the imposition of the duty would appear to be 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 …

Scope of the duty

9.71 The scope of the duty of care is to exercise reasonable care and
supervision to protect students from foreseeable risks of injury: Geyer v
Downs (1978) 138 CLR 91; 17 ALR 408; Commonwealth v Introvigne (1982)
150 CLR 258 at 269; 41 ALR 577 at 586. In H v New South Wales [2009]
NSWDC 193, the plaintiff was stabbed by a fellow student on the school
grounds. As the teachers were aware of the conduct between the students
prior to the stabbing, the risk to the plaintiff was foreseeable and within the
school’s duty of care. In Gregory v New South Wales [2009] NSWSC 559, the
plaintiff successfully sued for breach of the school’s duty of care to exercise
due and proper care to prevent the mistreatment of the plaintiff by other
students while at high school. See also Australian Capital Territory Schools
Authority v El Sheik (2000) Aust Torts Reports ¶81-577.

9.72 The duty is not limited to when the student is on school premises or
the set school hours. For example, in Geyer v Downs (1978) 138 CLR 91; 17
ALR 408, the school was liable to the plaintiff who was injured on the school
grounds before school had commenced. Stephen J held that if at the time the
relationship of ‘schoolmaster and pupil’ existed, the duty of care would apply:
at CLR 94; ALR 410. In Abraham bht Abraham v St Mark’s Orthodox Coptic
College [2006] NSWSC 1107, the school was held negligent for not providing
an effective system of supervision from 7.45 am, when a significant number of
students commenced arriving at the school, until 8.30 am when classes
commenced. In Gugiatti v Servite College Council Inc [2004] WASCA 5, the
school was held to owe a duty of care to its students while on a school retreat
which took place off school grounds and outside of school hours. See also
Roman Catholic Church v Koffman (1996) Aust Torts Reports ¶81-399, where
the school’s duty of care extended to supervising the bus stop outside the high
school.

[page 174]

9.73 The duty owed by school authorities to their pupils may also extend
to school bus drivers. For example, in Jarvis v Scrase [2000] 2 Qd R 92, the
bus driver was held liable for failing to warn a child, who had just stepped off
the bus, of an approaching motor vehicle. The child was killed and the
parents successfully sued for the psychiatric injuries they suffered as a result
of the manner of their child’s death. See also Fitzgerald v Hill (2008) 51 MVR
55, where the owner and operator of an academy provided instruction in
martial arts to children as young as eight. The Queensland Court of Appeal
held that the duty owed by the academy owner was similar to that of a school
authority, and further was a nondelegable duty: see 9.75.

9.74 While the duty owed to a child by a school authority is well

established in regard to physical injuries, more problematic is whether a duty
is owed for failing to provide a child with an appropriate standard of
education. In England, it has been held that the duty does not extend to
identifying a pupil’s special learning needs: Phelps v Hillingdon London
Borough Council [2001] 2 AC 619; [2000] 4 All ER 504.2 Such claims are not
recognised in the United States, and the issue has not yet been directly
addressed in Australia. However, the Australian consumer laws may provide
a way for education institutions to be liable for failing to provide services with
due care and skill.3

Non-delegable duty
9.75 The vulnerability of children and the degree of control exercised over
them by school authorities has resulted in the school authorities’ duty of care
being classified as a non-delegable duty of care: Ramsay v Larsen (1964) 111
CLR 16; Commonwealth v Introvigne (1982) 150 CLR 258; 41 ALR 577; New
South Wales v Lepore; Samin v Queensland; Rich v Queensland (2003) 212
CLR 511; 195 ALR 412. See also Chapter 20.

School Authorities and Third Parties

9.76 School authorities owe an affirmative duty of care to supervise pupils
to prevent damage to third parties: Commonwealth v Introvigne (1982) 150
CLR 258; 41 ALR 577. This duty extends to the protection of persons
attempting to rescue pupils put in danger by a lack of supervision:
Carmarthenshire County Council v Lewis [1955] AC 549. In Carmarthenshire
County Council v Lewis, a day care centre was held liable to the estate of a
truck driver who was killed when he swerved to avoid a four-year-old girl
whose carers had allowed her to wander on to the highway.

Parent and Child

9.77 There is no principle of parent immunity for negligent supervision of
children: Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391 at [129]; St
Mark’s Orthodox Coptic

[page 175]

College v Abraham [2007] NSWCA 185 at [31]. However, some judges have
expressed the opinion that such immunity exists based upon legal policy and
community expectations. For example, in Hoffman v Boland (by her tutor
Boland) [2013] NSWCA 158 at [16], Basten JA stated:
it is clear that questions of coherence arise in respect of an action in tort by a child against either
 or both of his or her parents. However, it is not readily apparent how such issues are to be
resolved. On the one hand, it may be thought to be supportive of such legal principles to allow a
child to enforce parental obligations. On the other hand, it might be thought that to allow a
child to bring proceedings in tort against a parent might be destructive of the underlying
relationship which the law recognises, supports and seeks to maintain.

In that case, damages were sought from the grandmother of the six-month-
old child for injuries suffered as a result of the grandmother falling down
stairs as she held the baby in her arms. Basten JA held that in the
circumstances no duty of care was owed, stating (at [40]) that a ‘mother owed
no duty enforceable by an action in tort in respect of her ordinary day-to-day
care of her baby; the grandmother was in a similar position and it follows that
the child’s claim against her should have failed on the basis that she owed no
duty of care enforceable in tort’. See also Robertson v Swincer (1989) 52 SASR
356 at 360–2 per King CJ.

9.78 Despite the fact that there is judicial opinion that the quality of
supervision of a child by a parent does not give rise to a duty of care, the High
Court in Hahn v Conley (1971) 126 CLR 276 is authority for the principle that
a duty may be owed in certain circumstances. In Hahn v Conley (1971) 126
CLR 276, the grandchild was in the care of the grandfather who did not notice
the child was crossing the road to him when the child was struck by a car.
Windeyer J held (at 294) that the grandfather could owe a duty of care but it
would not arise from the blood relationship but ‘from the particular
situation’.

Scope of the duty

9.79 If the ‘particular situation’ gives rise to a duty of care, which may be
due to the control the parent or guardian exercises over the child and the
child’s vulnerability (St Mark’s Orthodox Coptic College v Abraham [2007]
NSWCA 185 at [35]), the scope of that duty will be to exercise reasonable care
not to expose the child to foreseeable harm.
In St Mark’s Orthodox Coptic College v Abraham, the circumstances that
constituted the ‘particular situation’ were that the father had left his nine-
year-old son at school at approximately 8.00 am when he knew, or should
have known, there was no effective system of supervision for children before
the commencement of school at 8.30 am. As Ipp JA evaluated the situation (at
[35]):
Taking a nine-year old child from his home environment and leaving him at school is conduct
that will usually involve a potential risk of harm to the child (which will vary in degree
depending on the circumstances). In my view, any parent who performs such an act may owe a
duty to the child to take reasonable care in not exposing the child to foreseeable harm in doing
so.

See also Tweed Shire Council v Howarth [2009] NSWCA 103 (parent who
took child to a place close to a source of danger came under a duty to exercise
reasonable care not to expose their child to foreseeable harm); Anderson v
Smith (1990) 101 FLR 34 (grandmother negligent in failing to secure a gate to
a swimming pool).

[page 176]

Parent and Third Party

9.80 The general rule is that the law does not impose a duty upon a person
to control the acts of another to prevent loss or harm to a third party:
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; 176
ALR 411. However, due to parental control, a parent may owe a duty of care
to a third party to control their children in such a manner as to prevent them
causing injury to third persons or to their property: Smith v Leurs (1945) 70
CLR 256; Cameron v Commissioner for Railways [1964] Qd R 480; McHale v
Watson (1964) 111 CLR 384.
In McHale v Watson, a 12-year-old boy threw a homemade metal dart
which accidentally hit the nine-year-old plaintiff in the eye, causing her
serious injury. The father, on his daughter’s behalf, sued both the boy and his
parents. In considering the liability of the parents, Windeyer J stated (at 386):
A parent is, generally speaking, not legally liable for the wrongdoing of his child. This is the rule
of the common law … A parent may … be liable for the consequence of his child’s wrongdoing
if his own negligence caused or provided the occasion for it. In that case the parent is not
vicariously liable: he is liable because of his own negligence.

Scope of the duty

9.81 In Smith v Leurs (1945) 70 CLR 256 at 262, Dixon J stated:
Parental control, where it exists, must be exercised with due care to prevent the child inflicting
intentional damage on others or causing damage by conduct involving unreasonable risk of
injury to others.

9.82 The duty to control children also extends to those acting in the place
of the parent. For example, in Curmi v McLennan [1994] 1 VR 513, the
defendant was held responsible for the actions of a boy whom he permitted,
along with his own son and others, to spend a weekend on his houseboat. On
the houseboat was an airgun and ammunition which were easily accessible.
The boy accidentally shot the plaintiff child who lost the sight of one eye.
Gobbo J stressed the importance of the quality of instruction given to the
boys, and said (at 522–3):
Putting to one side his own son, there was nothing to suggest that the [defendant] had made
inquiries to satisfy himself as to the prior experience or maturity of the boys in relation to the
use of firearms … In this situation, there was a duty of care owed by the [defendant] to each of
the boys who were using the houseboat and who were given access to the airgun.

Prison Authorities and Prisoners

9.83 Prison authorities owe a duty of care to prisoners and other detainees
to prevent them being injured: Howard v Jarvis (1958) 98 CLR 177; Ellis v
Home Office [1953] 2 All ER 149; Bujdoso v New South Wales (2004) 1512 A
Crim R 235. The duty arises due to the control of the authority and the
vulnerability of the prisoners: Price v New South Wales [2011] NSWCCA 341
at [35]; New South Wales v Godfrey & Godfrey [2004] NSWCA 113.
9.84 A duty will be owed by any body that has the authority to detain
people. For example, the Commonwealth owes a duty of care to those it
imprisons in immigration detention:

[page 177]

Behrooz v Secretary of the Department of Immigration and Multicultural and

Indigenous Affairs (2004) 219 CLR 486; 208 ALR 271 at [174]. In MZYYR v
Secretary, Department of Immigration and Citizenship (2012) 292 LR 659 at
[55], it was held that the Commonwealth was in a position of control and that
the detainees could not be expected to safeguard themselves from danger. It
may be that the duty of the Commonwealth is non-delegable, see AS v
Minister for Immigration and Border Protection [2014] VSC 593
(Commonwealth accepted that it owed a non-delegable duty of care to
provide reasonable healthcare to detainees, but questioned if the duty of the
Minister was also non-delegable).

Scope of the duty

9.85 The scope of the duty is that the goaler must exercise reasonable care
to avoid foreseeable risks to the prisoner: Howard v Jarvis (1958) 98 CLR 177;
New South Wales v Napier [2002] NSWCA 402; Ellis v Home Office [1953] 2
All ER 149. In SBEG v Commonwealth (2012) 208 FCR 235; 295 ALR 81 at
[19], the scope of the duty in relation to the detention of refugees was
expressed as:
an obligation of reasonable care to avoid harm to the detainee whether that harm be inflicted by
a third person or by the detainee himself or herself. The risk of harm to the detainee is not the
only matter to be considered in assessing whether reasonable care has been exercised: a
consideration which must be addressed is the need to ensure effective detention in accordance
with the law.

9.86 Risks may arise from other prisoners as well as by other means. In
Howard v Jarvis (1958) 98 CLR 177, the appellant arrested and charged Jarvis
and locked him in the cell for the night. A few hours later, the appellant was
notified that there was a fire but Jarvis was discovered dead in the cell. Jarvis’s
wife sued in negligence. Dixon FJ, Fullagar and Taylor JJ held (at 183):
We feel no doubt that … Howard [the appellant] was subject at common law to a duty to
exercise reasonable care for the safety of Jarvis [the prisoner] during his detention in custody.
He had deprived Jarvis of his personal liberty, and assumed control of his person. In arresting
and detaining Jarvis he was no doubt acting lawfully and properly and in the due execution of
his duty, but he was depriving Jarvis of his liberty, and he was assuming control for the time
being of his person, and it necessarily followed, in our opinion, that he came under a duty to
exercise care for the safety of his person during the detention.

In L v Commonwealth (1976) 10 ALR 269, the prison authority was held to

owe a duty to a remand prisoner to keep him apart from convicted prisoners
and was in breach of that duty when it placed him in a cell with two convicted
prisoners whom the authorities knew, or should have known, were prone to
violence. See also Dixon v Western Australia [1974] WAR 65.

9.87 The duty owed to prisoners should not, however, be equated to that
owed by school authorities to their pupils: Quinn v Hill [1957] VR 439. In
Nada v Knight (1990) Aust Torts Reports ¶81-032, the court held that the
duty included taking only reasonable precautions and that it was important
not to set too high a standard of care.

9.88 In England, it has been held that prison authorities owe a duty to
identify prisoners who are at special risk of taking, or attempting to take, their
own lives (Metropolitan Police

[page 178]

Commissioner v Reeves [2000] 1 AC 360; [1999] 3 All ER 897), but that there
is no duty to guard against prisoners generally committing, or attempting to
commit, suicide: Orange v Chief Constable of West Yorkshire Police [2002] QB
347.
Prison Authorities and Third Parties
9.89 Consistent with the duty of care that employers owe employees,
prison authorities owe a duty to corrective service officers and other
employees to protect them from attack by prison inmates: Ralph v Strutton
[1969] Qd R 348. In regard to third parties outside of the prison, the duty will
exist during the course of a prisoner’s escape and in the immediate vicinity of
the prison in circumstances where the prison authorities are still capable of
being able to reassert control over the escapee: New South Wales v Godfrey
(2004) Aust Torts Reports ¶81-741.
In New South Wales v Godfrey, the plaintiff was working in a Sydney
newsagency when an escaped prisoner pointed a shotgun at her and
demanded money. The plaintiff was 23 weeks pregnant at the time and eight
days after the robbery gave birth to a child who suffered disabilities as a result
of his premature birth. The robbery occurred two-and-a-half months after the
prisoner had escaped from the minimum security section of Bathurst Goal.
Spigelman CJ, with whom Sheller and McColl JJ agreed, held that it would be
‘ludicrous’ to suggest that the decision in Home Office v Dorset Yacht Co Ltd
[1970] AC 1004 supported the imposition on prison authorities of a duty in
regard to escaped prisoners which could be ‘found to encompass conduct
hundreds of kilometres from, and months after, an escape’: at [31]–[34]. See
also Lam v South Australia (2004) 234 LSJS 414; [2004] SADC 110.

9.90 Similarly, a parole board has no general duty to supervise prisoners

released on parole: X v South Australia (No 2) (2005) 91 SASR 258. In Swan v
South Australia (1994) 62 SASR 532, however, where the Parole Board had
information that, in blatant breach of his parole conditions, a paroled
paedophile was spending nights with young boys, a duty was held to be owed
to the young boys concerned.
 6 Professionals
9.91 A duty of care exists between a professional and their client: Groom v
Crocker [1939] 1 KB 194; Voli v Inglewood Shire Council (1963) 110 CLR 74;
Hawkins v Clayton (1988) 164 CLR 539. Originally, it was held that if a party
to a contract suffered loss, the remedy lay only in the law of contract; but the
common law has evolved so that concurrent duties under both contract and
tort law may be owed: Astley v Austrust Ltd (1999) 197 CLR 1.

9.92 The law imposes a duty of care upon many professional relationships,
for example:
real estate agent and client (Georgieff v Athans (1981) 26 SASR 412);
valuer and client (Smith v Eric S Bush [1990] 1 AC 831);
accountant/auditor and client (Hardie (Qld) Employees Credit Union
Ltd v Hall Chadwick & Co [1980] Qd R 362);
medical professional and client (Rogers v Whitaker (1992) 175 CLR
479; 109 ALR 625); and
legal professional and patient (Heydon v NRMA Ltd (2000) 51 NSWLR
1).

[page 179]

9.93 Generally the content of the duty of care owed by a professional to a

client is to exercise reasonable care in carrying out the service or retainer to
avoid foreseeable loss. As discussed at 8.17, one of the factors which a court
takes into account when determining whether the plaintiff owes the
defendant a duty of care is the identification of the kind of harm or damage
suffered as a result of the defendant’s negligent act or omission. In
professional negligence cases, this is one of the first factors to consider when
determining whether a duty of care is owed.
9.94 If the damage suffered is physical injury, then courts will usually have
no difficulty in finding that a duty of care was owed by the professional. And
despite the general exclusionary rule against a duty being owed in regard to
pure economic loss (see 10.77), the relationship between a professional and
their client is a well-established exception to this rule, although there may be
difficult issues in regard to the scope of the duty. The situation is quite
different if a third party to the professional relationship suffers damage in the
form of pure economic loss: Hawkins v Clayton (1988) 164 CLR 539; Hill (t/as
R F Hill & Associates) v Van Erp (1997) 188 CLR 159; 142 ALR 687 (Hill v
Van Erp); Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (Reg)
(1997) 188 CLR 241; 142 ALR 750.
This section focuses on the established duties of care of the medical and
legal professions.

Medical Professionals
9.95 It is well established that members of the medical profession owe a
duty of care to patients: Rogers v Whitaker (1992) 175 CLR 479; 109 ALR 625;
Roe v Minister of Health [1954] 2 QB 66; Hotson v Fitzgerald [1985] 1 WLR
1036; Sidaway v Governors of Bethlem Royal Hospital [1985] AC 871; [1985] 1
All ER 643.

9.96 The term ‘medical professional’ has been interpreted broadly and
includes doctors, dentists, surgeons, anaesthetists, pathologists, radiologists
and nurses: Rosenberg v Percival (2001) 205 CLR 434; 178 ALR 577; Hribar v
Wells (1995) Aust Torts Reports ¶81-345.

Scope of the duty

9.97 The scope of the duty owed by medical professionals was discussed by
the High Court in Rogers v Whitaker (1992) 175 CLR 479 at 483; 109 ALR 625
at 628, where it was stated:
 The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the
provision of professional advice and treatment. That duty is a single comprehensive duty
covering all the ways in which a doctor is called upon to exercise his skill and judgment; it
extends to the examination, diagnosis and treatment of the patient and the provision of
information in an appropriate case.

In Rogers v Whitaker, the High Court held the defendant medical

professionals liable because of the control they, as professionals, exercised
over their clients and because the plaintiff was dependent on the defendants’
professional judgment and skills. The plaintiff was found to be vulnerable
because she had to rely on the defendant ophthalmologist to warn her of any
risks to her good eye associated with the surgery on her blind eye. Since the
defendant did not warn the plaintiff of the one in 14,000 chance of developing

[page 180]

sympathetic ophthalmia in her good eye, the ophthalmologist was liable when
the plaintiff then developed the disease in her good eye and became blind.
This is despite the fact that there was no negligence in the carrying out of the
operation itself. The High Court held that the plaintiff’s vulnerability required
the scope of the defendant’s liability to extend beyond non-negligent
treatment to the provision of relevant warnings about the dangers of the
proposed treatment.
See also Wallace v Kam (2013) 250 CLR 375; 297 ALR 383 at [8], where it
was stated:
The common law duty of a medical practitioner to a patient is a single comprehensive duty to
exercise reasonable care and skill in the provision of professional advice and treatment. A
component of that single comprehensive duty is ordinarily to warn the patient of “material
risks” of physical injury inherent in a proposed treatment. A risk of physical injury inherent in a
proposed treatment is material if it is a risk to which a reasonable person in the position of the
patient would be likely to attach significance, or if it is a risk to which the medical practitioner
knows or ought reasonably to know the particular patient would be likely to attach significance
in choosing whether or not to undergo a proposed treatment. The component of the duty of a
medical practitioner that ordinarily requires the medical practitioner to inform the patient of
material risks of physical injury inherent in a proposed treatment is founded on the underlying
 common law right of the patient to choose whether or not to undergo a proposed treatment. In
imposing that component of the duty, the common law recognises not only the right of the
patient to choose but the need for the patient to be adequately informed in order to be able to
make that choice rationally. The policy underlying the imposition of that component of the duty
is to equip the patient with information relevant to the choice that is the patient’s to make. The
duty to inform the patient of inherent material risks is imposed to enable the patient to choose
whether or not to run those inherent risks and thereby “to avoid the occurrence of the particular
physical injury the risk of which [the] patient is not prepared to accept”. [footnotes omitted]

Legislation also exists in some jurisdictions, particularly in respect of health

directives, that imposes a duty upon a medical practitioner to explain to a
patient the nature, consequences and risks of the proposed treatment and the
likely consequences if the treatment if not undertaken. See, for example,
Consent to Medical Treatment and Palliative Care Act 1995 (SA) s 15;
Medical Treatment Act 1988 (Vic) s 5(1)(c).

Duty to third parties

9.98 A doctor may owe a duty of care to the unborn child of a patient if the
child is born suffering harm from the doctor’s negligence. In X v Pal (1991)
23 NSWLR 26, the doctor’s negligence predated conception, but, nonetheless,
the court held that the doctor owed a duty of care to the child subsequently
born. The respondent, an obstetrician and gynaecologist, was negligent in
failing to test X for syphilis during her first pregnancy. That child died and Y
was born from a second pregnancy with deformities due to the syphilis of her
mother. Clarke JA stated (at 41):
… it should be accepted that a person may be subjected to a duty of care to a child who was
neither born nor conceived at the time of his careless acts or omissions such that he may be
found liable in damages to that child.

[page 181]

9.99 If the damage claimed is the fact that the child is born, for example if
the doctor negligently failed to advise the mother of risks to the foetus,
depriving her of the choice of terminating the pregnancy, as in Harriton v
Stephen (2006) 226 CLR 52; 226 ALR 391, a ‘duty of care cannot be clearly
stated’: at [276] per Crennan J: see 12.11.

9.100 In Harvey v PD (2004) 59 NSWLR 639, the respondent and her

partner had tests carried out to determine whether either had sexually
transmitted diseases before getting married. The respondent and her partner
saw the same doctor who was informed of the purpose of the tests. The test
results of the respondent’s partner revealed he was HIV positive, but this
information was not passed on to the respondent. The respondent sued the
doctor in negligence, who claimed that due to privacy the results could not be
shared without consent. The New South Wales Court of Appeal held that the
doctor owed a duty of care to both parties and the duty included the need to
address the need for consent for disclosure of the results at the initial joint
consultation.
If the negligence of a doctor results in the patient’s partner suffering injury,
for example through contracting an infection, the scope of the doctor’s duty
may extend to that third party: see CS v Bierdrzycka [2011] NSWSC 1213,
where the plaintiff contracted HIV after two doctors in a medical practice
failed to notify the plaintiff’s partner of a positive test result. Both doctors
admitted liability in negligence.

Hospitals
9.101 A hospital owes a duty of care to its patients: Cassidy v Ministry of
Health [1951] 2 KB 343; Ellis v Wallsend District Hospital (1989) 17 NSWLR
553; Samios v Repatriation Commission [1960] WAR 219. In Albrighton v
Royal Prince Alfred Hospital [1980] 2 NSWLR 542, the appellant was
admitted to hospital for corrective surgery and became a paraplegic due to the
negligent surgery in which her spinal cord was severed. It was pointed out
that whether the hospital owed a duty of care involved an examination of the
circumstances. The evidence was that the hospital had undertaken to provide
the appellant complete medical services through its staff, chosen by the
hospital not the appellant. It was held (at 562):
The hospital, by admitting the appellant, could be regarded as undertaking that it would take
reasonable care to provide for all her medical needs; and, whatever legal duties were imposed
upon those who treated, diagnosed or cared for her needs from time to time, there was an
overriding and continuing duty upon the hospital as an organisation.

See also Roe v Minister of Health [1954] 2 QB 66.

9.102 Non-delegable duty The duty owed by a hospital to a patient is a

non-delegable duty: see Chapter 20. In Kondis v State Transport Authority
(1984) 154 CLR 672 at 686, one of the leading cases on non-delegable duties
in Australia, the High Court noted:
… undertaking an obligation to treat its patient, an obligation which carries with it a duty to use
reasonable care in treatment, so that the hospital is liable, if a person engaged to perform the
obligation on its behalf acts without due care. … Accordingly, the duty is one the performance
of which cannot be delegated, not even to a properly qualified doctor or surgeon under a
contract for services.

[page 182]

Legal Professionals
Solicitors
9.103 Solicitors owe a duty of care to their clients to exercise reasonable
care in carrying out the terms of their retainer: Ross v Caunters [1980] Ch
297; White v Jones [1995] 2 AC 207; Heydon v NRMA Ltd (2000) 51 NSWLR
1. It is not necessary for the solicitor’s retainer to be express; it may be
implied: Stringer v Flehr & Walker (2003) Aust Torts Reports ¶81-718;
Simmons v Story [2001] VSCA 187 at [23]; Australian Energy Ltd v Lennard
Oil NL [1986] 2 Qd R 216 at 237; Pergrum v Fatharly (1996) 14 WAR 92 at 94;
Meerkin & Apel v Rossett Pty Ltd [1998] 4 VR 54 at 62.
9.104 In some circumstances, a solicitor may owe a duty to an opposing
party, particularly if the solicitor goes beyond the normal role of a solicitor:
Gran Gelato v Richcliff (Group) Ltd [1992] 2 WLR 867; Al-Kandari v J R
Brown & Co [1988] QB 665 (Court of Appeal); Hardware Services Pty Ltd v
Primac Association Ltd [1988] 1 Qd R 393.

9.105 It is also possible for a solicitor to act for both parties to a

transaction, but it is discouraged by the courts: Commonwealth Bank of
Australia v Smith (1991) 102 ALR 453 at 478; Clark Boyce v Mouat [1993] 3
NZLR 641. A solicitor acting for both parties must obtain the informed
consent of both parties: Clark Boyce v Mouat; Lowy v Alexander [2000]
NSWSC 661. Informed consent means that the consent is given with the
knowledge of the conflict of interests of the parties, and that as a result the
solicitor may be disabled from disclosing to each party the full knowledge
which they possess as to the transaction or may be disabled from giving
advice to one party which conflicted with the interests of the other: Clark
Boyce v Mouat [1993] 3 NZLR 641. A solicitor acting for both parties must
exercise due care and skill in the interests of each of the parties; the interests
of one party cannot be paramount to the other: Moody v Cox & Hatt [1917] 2
Ch 71. Should a conflict arise that places the solicitor in the position of not
being able to meet the duty of care owed to both of the parties, the solicitor
should cease acting for either one, or both, of the parties: Stewart v Layton
(1992) 111 ALR 687 at 712.

9.106 The established duty of a solicitor is owed to the client; however, the
law has recognised that in some cases a solicitor may owe a duty of care to a
third party: Hill (t/as R F Hill & Associates) v Van Erp (1997) 188 CLR 159;
142 ALR 687 (solicitor owed duty to disappointed beneficiary). This is a novel
duty and is discussed at 10.97.

Scope of the duty

9.107 A solicitor must exercise due care, skill and diligence to carry out the
terms of his or her retainer. The scope of the duty will depend upon the terms
of the solicitor’s retainer and any other assumed responsibility: Heydon v
NRMA Ltd (2000) 51 NSWLR 1 at [146]. See also Moss v Eagleston [2014]
NSWSC 6 (solicitor’s duty of care was restricted to drafting the statement of
claim for breach of contract, not to advise as to possible actions in defamation
or misleading or deceptive conduct).
In Hawkins v Clayton (1988) 164 CLR 539 at 579, the High Court held that
because a solicitor’s duty is founded in both contract (the retainer) and tort,
the scope of the duty includes going

[page 183]

beyond the specific terms of the retainer if it is necessary to avoid a real and
foreseeable risk of economic loss for the client. In May v Mijatovic (2002) 26
WAR 95 at [131] it was held:
The duty of care may require the taking of positive steps beyond the specifically agreed
professional task where those steps are necessary to avoid a real and foreseeable risk of loss.

9.108 It has been accepted that the scope of a solicitor’s duty may include:
a duty to warn a client of inherent risks that the client is not aware of
(Capebay Holdings Pty Ltd v Sands [2002] WASC 287 — solicitors in
breach of duty by failing to explain the financial consequences of a
building encroachment);
a duty to advise the client of all terms that may be important and
influence the client’s decision in entering into the contract when
advising on a contract (Sykes v Midland Bank Executor & Trustee Co
Ltd [1971] 1 QB 113 — solicitor in breach of duty by failing to advise
that a term of the contract allowed the head lessor to unreasonably
withhold consent to a subletting); and
a duty to fully advise of all possible outcomes to allow the client to
 make an informed decision as to whether to proceed with a course of
action: Hyland v Campbell (1995) Aust Torts Reports ¶81-352 —
solicitors breached their duty by not pleading an action correctly and
failing to warn of the possibility of not recovering damages.
In Kayteal Pty Ltd v Dignan (2011) 15 BPR 29,515, the plaintiff mortgagee
suffered loss when the valuation of the secured property was incorrect and
therefore the true value was far less than was stated in the property valuation.
The mortgagor and valuer were bankrupt, so the plaintiff sought damages
from its solicitors claiming negligence for the failure to advise that the
mortgagor’s statement of assets and liabilities was incorrect and they were
unable to service the loan. The court noted that the duty of a mortgagee’s
solicitor is ‘ordinarily confined to matters within the scope of the lender’s
interest that the solicitor was engaged to protect, which appears from the
retainer’ and for a loan transaction involves ‘obtaining a valid and enforceable
security’: at [36]. After reviewing the authorities, Brereton J held (at [38]):
Absent specific instructions, the scope of a lender’s solicitor’s responsibility includes the
legal efficacy of the security, but not its value, nor the creditworthiness of the borrower;
However, a solicitor is bound to report to the client matters discovered — or that ought
to have been discovered — in the course of investigating title and preparing for
completion, that a reasonably competent solicitor would regard as such as might cause
the lender to doubt the correctness of the valuation, or some other ingredient of the
lending decision.

9.109 Therefore, a solicitor will not usually be expected to advise a client as

to the commercial efficacy of a transaction unless it is part of their retainer to
do so: Kayteal Pty Ltd v Dignan (2011) 15 BPR 29,515; Littler v Price [2005] 1
Qd R 275 cf Waimond Pty Ltd v Byrne (1989) 18 NSWLR 642. See also
Amadio Pty Ltd v Henderson (1998) 81 FCR 149 (solicitor advising on lease
should have advised on absence of a clause to prevent the rent from
decreasing upon review); Burke v LFOT Pty Ltd (2002) 209 CLR 282
(conveyance of commercial property subject to a lease, held that the solicitor
should have advised
 [page 184]

client to make inquiries of financial standing of lessees). See also Robert Bax
& Associates v Cavenham Pty Ltd [2012] QCA 177.

Barristers
9.110 The legal profession has traditionally been divided into barristers or
counsel undertaking litigious or court work as advocates, and solicitors
undertaking general legal work including preparation of cases for trial. Not all
jurisdictions have a divided profession. In some states, such as Victoria, the
roles of barristers and solicitors have been fused. Even in jurisdictions which
retain a divided profession, the division between the two branches of the legal
profession is often blurred; barristers undertake general advisory work
unconnected with litigation and solicitors act as advocates.

9.111 Unlike between a solicitor and a client, there is no contractual

relationship between a barrister and client, or between a solicitor and
barrister. At common law, a barrister, or solicitor acting as an advocate, is
also immune to being sued in negligence for anything done in court or in the
course of the conduct of litigation: Rondel v Worsley [1969] 1 AC 191; Rees v
Sinclair [1974] 1 NZLR 180; Biggar v McLeod [1978] 2 NZLR 9; Feldman v A
Practitioner (1978) 18 SASR 238. The barristers’ immunity at common law is
based upon the fundamental policy consideration that the administration of
justice would be impaired if barristers were made accountable in negligence
for litigious work. The immunity extends to the work of advocates in fused
legal professions where no formal distinction is drawn between barristers and
solicitors: Rees v Sinclair; Feldman v A Practitioner; Giannarelli v Wraith
(1988) 165 CLR 543; 81 ALR 417.

9.112 The reasons for the immunity, sometimes referred to as a ‘no duty’
situation, were discussed by the High Court in Giannarelli v Wraith (1988)
165 CLR 543; 81 ALR 417, where a majority of the High Court held that s
10(2) of the Legal Profession Act 1958 (Vic) did not displace the common law
immunity of a barrister (or a solicitor acting as an advocate) in respect of
work done ‘in court’ and of work done ‘out of court’ leading to a decision
affecting the conduct of the case. Their Honours also confirmed that the
immunity rested on policy considerations such as the barrister’s overriding
duty to the court and the undesirability of exposing court decisions to
collateral attack by negligence actions against advocates. See also Keefe v
Marks (1989) 16 NSWLR 713 at 718.

9.113 The issue of the immunity has been revisited in the United
Kingdom, New Zealand and Australia. In the United Kingdom, in Arthur J S
Hall & Co (a firm) v Simons [2002] 1 AC 615; [2000] 3 All ER 673, the House
of Lords abolished the immunity of the barrister in both civil and criminal
proceedings. Their Lordships considered there was no real basis for the
argument that barristers would constantly be sued in negligence as, under
normal principles, if the barrister was bona fide in his or her dealings, no
liability would be found. Similar reasoning underpinned the New Zealand
decision of Lai v Chamberlains [2005] 3 NZLR 291, when the Court of Appeal
held that, in respect of civil cases, a barrister should be assessed against the
standard of a reasonably competent practitioner, abolishing the traditional
immunity.

[page 185]

9.114 In Australia, the opportunity to reconsider the immunity arose in

D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; 214 ALR 92, where,
by a 6:1 majority, the High Court confirmed that the traditional immunity of
barristers continues to apply in Australia: see [96]–[103] per McHugh J. Kirby
J, the sole dissent, rejected the need for the immunity, approving the House of
Lords decision of Arthur J S Hall & Co (a firm) v Simons. See also the strong
dissent by Deane J in Giannarelli v Wraith (1988) 165 CLR 543 at 588; 81
ALR 417 at 445–6.

9.115 The immunity applies to what the advocate does in court and in the
course of the conduct of the litigation. Recently there have been cases which
examine whether particular acts fall within the conduct of litigation. In
Stillman v Rusbourne [2015] NSWCA 410, the court considered whether
advice given after court-appointed mediation to accept an offer of settlement
was within the advocate’s immunity. A majority of the court held that the
immunity applied. Gleeson CJ held (at [60]) that the advice as to the
mediation was ‘work done out of court affecting the conduct of the case in
court’. Simpson JA (at [71]) held that although mediation was not an exercise
of judicial power, it was ‘a step in the process towards the exercise of judicial
power’. Basten JA dissented, holding that as consent orders had been entered
into before the trial commenced, and as there was no judicial determination
of the case on its merits, the advocate’s immunity did not apply. The High
Court in Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 331 ALR 1, held that
advice given on a settlement during the course of a trial did not attract
immunity. The court stated (at [52]):
… the public policy which justifies the immunity is not concerned with the desirability or
otherwise of settlements, but with the finality and certainty of judicial decisions.

Legislation
9.116 The common law duty of a solicitor is reflected in the Australian
Solicitors Conduct Rules. Rule 4.1 provides that a solicitor must:
4.1.1 act in the best interest of the client in any matter in which the solicitor represents the
client;

4.1.3 deliver legal services competently, diligently and as promptly as reasonably possible.

9.117 The Australian Solicitors Conduct Rules provide disciplinary action

for unsatisfactory professional conduct and professional misconduct and
apply in addition to the common law: Australian Solicitors’ Conduct Rules r
2.2. ‘Professional misconduct’ includes conduct that involves a ‘failure to
reach or maintain a reasonable standard of competence and diligence’:
Glossary of Terms.

9.118 The legal profession legislation also provides for the regulation of
legal practice and imposes consequences for unsatisfactory professional
conduct and professional misconduct. See Legal Profession Act 2006 (ACT);
Legal Profession Uniform Law Application Act 2014 (NSW); Legal Profession
Act 2006 (NT); Legal Profession Act 2007

[page 186]

(Qld); Legal Practitioners Act 1981 (SA); Legal Profession Act 2007 (Tas);
Legal Profession Uniform Law Application Act 2014 (Vic); Legal Profession
Act 2008 (WA).

7 Manufacturers of Goods
9.119 When Mrs Donoghue brought her action against Mr Stevenson, she
was seeking compensation for the physical injury — the nausea and vomiting
— caused by a defective bottle of ginger beer: Donoghue v Stevenson [1932]
AC 562. She was not seeking recovery of the money paid for the snail-
contaminated bottle of ginger beer. This section deals with defective products
causing physical damage to a person or property, not the decrease in the value
of the product itself.

9.120 A defective product may also cause pure economic loss taking it
outside the scope of the established duty: see Perre v Apand Pty Ltd (1999)
198 CLR 180; 164 ALR 606; Swick Nominees Pty Ltd v Leroi International Inc
(No 2) [2015] WASCA 35. However, it is more common that these actions are
brought under the Australian Consumer Law, formerly the Trade Practices
Act 1974 (Cth), discussed at 9.127.

9.121 Prior to the decision in Donoghue v Stevenson [1932] AC 562, the

law of contract offered the only source of compensation for injuries caused by
defective products: see 1.41. The common law did, however, recognise an
exception to this general rule where products were inherently dangerous,
such as explosives. The manufacturers or persons in control of these
inherently dangerous products were held strictly liable for any damage
caused, independently of the law of contract: Dixon v Bell (1816) 1 Stark 87;
171 ER 475. Such a person was also strictly liable for any damage caused to
persons or their property by the escape of an inherently dangerous product:
Rylands v Fletcher (1866) LR 1 Ex 265. The exception did not extend,
however, to products which were inherently innocent, but made dangerous
because of the manner in which they were used.

9.122 In Donoghue v Stevenson, the House of Lords decided that a

manufacturer of a defective product, even if inherently innocent, could be
made liable in tort to a person injured by the use of that product, even in the
absence of contractual privity. Ironically, this resulted in the distinction
between inherently dangerous and innocent products becoming obsolete;
both now only required the taking of reasonable care in their manufacture
and use: Read v Lyons & Co Ltd [1947] AC 156; Anderson v Enfield City
Corporation (1983) 34 SASR 472; Todman v Victa Ltd [1982] VR 849.
Nevertheless, an inherently dangerous product will require a higher standard
of care in its manufacture, use, transportation, etc: Adelaide Chemical
Fertiliser Co Ltd v Carlyle (1940) 64 CLR 514; Anderson v Enfield City
Corporation; Todman v Victa Ltd. This was conceded by the majority of the
High Court in Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR
520 at 554 when they stated:
… depending upon the magnitude of the danger, the standard of “reasonable care” may involve
 “a degree of diligence so stringent as to amount practically to a guarantee of safety”.

9.123 It is not only manufacturers who owe a duty of care in regard to

defective products. Everyone involved in the chain of distribution to the
ultimate user of the product may owe a duty of care to a person who is
injured, or whose property is damaged, by a defective

[page 187]

product. In Brand v Bardon [1997] NSWCA 48, it was held that the appellant
owed a duty of care to the respondent, applying the principles of Donoghue v
Stevenson [1932] AC 562, even though they were the importer and distributor
of the goods. Other parties who may be owed a duty of care include:
A retailer or supplier is under a duty of care to warn of any dangerous
qualities of a product which are not a matter of common knowledge
and which are known to the supplier: Clarke v Army & Navy Co-
operative Society Ltd [1903] 1 KB 155; Laundess v Laundess (1994) 20
MVR 156 (reasonable foreseeability is not sufficient); McPherson’s Ltd
v Eaton (2005) 65 NSWLR 187. Even in the case of a gift, the donor
may be under a duty to warn of latent defects which are known to the
donor: MacCarthy v Young (1861) 6 H & N 329; 158 ER 136.
A person who supplies a defective article for a particular use may be
liable for injuries caused to a person arising from the unfitness of the
product for that use: Heaven v Pender (1883) 11 QB 503; Graham
Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 54; 196 ALR 337.
A person who is injured by the negligent installation of a product has a
remedy against the installer under the general principle of Donoghue v
Stevenson, and in the case of the installation of dangerous products, the
standard may be higher: Dominion Natural Gas Co Ltd v Collins [1909]
AC 640.
 A bailee owes a duty of reasonable care to a bailor: Tottenham
Investments Pty Ltd v Carburettor Services Pty Ltd (1994) Aust Torts
Reports ¶81-292.
Liability may be imposed upon anyone who renders a product
dangerous or fails to make it safe, and this will extend to repairers
(Haseldine v Daw [1941] 2 KB 343; Jull v Wilson & Horton [1968]
NZLR 88) and assemblers, erectors and distributors: Watson v Buckley
[1940] 1 All ER 174.
Where a public official has a duty to inspect a product, such as a motor
vehicle, and to take some action on which others may rely (for
example, issuing a statement such as a roadworthiness certificate for
the motor vehicle), the official may be liable if the user is subsequently
injured as a result of a defect which should have been discovered by the
inspection: Rutherford v Attorney-General [1976] 1 NZLR 403:
compare Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540;
196 ALR 337.
There is also no limit on the types of products which may be the subject of
a defective product action: Thompson v Johnson & Johnson Pty Ltd [1991] 2
VR 449.

Scope of the Duty

9.124 In Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; 201 ALR 139 at
[29], McHugh J said:
It is beyond doubt that a manufacturer of any product owes a duty to a consumer to take
reasonable care to prevent the product causing injury or loss to the consumer.

In Donoghue v Stevenson [1932] AC 562, the House of Lords held that a

manufacturer of products owes a duty to the consumer to take reasonable
care when:

[page 188]
 the product is sold in such a form as to show that it is intended that it
reach the ultimate consumer in the form in which it left the
manufacturer;
there is no reasonable possibility of intermediate examination; and
it is reasonably foreseeable that the absence of reasonable care in the
manufacture of the product will result in injury to the consumer.
In Swick Nominees Pty Ltd v Leroi International Inc (No 2) [2015] WASCA
35 at [131], the scope of the duty of a manufacturer was described as the
exercise of reasonable skill and diligence ‘in the design and manufacturing
process to produce a machine that is able reliably to perform its ordinary
functions’.

9.125 A manufacturer must take all reasonable precautions to prevent

injury to any person it can reasonably be foreseen could use the product
without intermediate inspection: Donoghue v Stevenson [1932] AC 562; Grant
v Australian Knitting Mills Ltd [1936] AC 85; Suosaari v Steinhardt [1989] 2
Qd R 477.

9.126 Reasonable precautions may include the need to provide a warning:

Levi v Colgate-Palmolive Pty Ltd (1941) 41 SR (NSW) 48; Streets Ice Cream
Pty Ltd v Australian Asbestos Installations Pty Ltd [1967] 1 NSWR 50. In
Brand v Bardon [1997] NSWCA 48, the respondent ordered a face cream for
sensitive skin from the appellant, indicating at the time of sale that she
wanted it for sensitive skin. The cream caused a rash which then blistered and
scarred. The appellant relied upon the decision of Levi v Colgate-Palmolive
Pty Ltd (1941) 41 SR (NSW) 48 at 52, where Jordan CJ stated:
Where the act is incapable of injuring an ordinary normal person, the person who does it owes
no duty to do more by reason only of the possibility that a person of abnormally accentuated
susceptibility may be affected by it. Special circumstances may, of course, give rise to a duty to
take special precautions to avoid injury to particular abnormal persons known to be likely to be
affected by a particular act; but the mere fact that abnormal persons exist in the community does
not alter the general standards by which rights and duties are established … Persons who trade
in and supply ordinary foodstuffs and articles of ordinary domestic use are, in my opinion,
 subject to no duty to issue warnings that the use of such articles may cause discomfort or injury
to abnormal persons who may be allergic to them.

However, in Brand v Bardon [1997] NSWCA 48, the Court of Appeal held
that there were ‘special circumstances’ in the case before it as the respondent
had indicated the cream was for sensitive skin and therefore the content of
the appellant’s duty of care included providing a warning.

Legislation
9.127 Despite the advances in consumer protection which resulted from
the decision in Donoghue v Stevenson [1932] AC 562, identifying the
appropriate defendant(s), establishing a breach of the duty of care and
bringing an action against defendants outside the jurisdiction still posed
insuperable hurdles for many plaintiffs injured by defective products. These
difficulties were considerably reduced by the Trade Practices Act 1974 (Cth),
most significantly by Pt VA of the Act. However, the rights of action arising
in negligence were not affected.

[page 189]

9.128 The Competition and Consumer Act 2010 (Cth), replacing the
Trade Practices Act, contains in Sch 2 the Australian Consumer Law. Chapter
3, Pt 3-5 of the Australian Consumer Law provides for liability of
manufacturers for goods with safety defects.
To bring an action under Pt 3-5, the defendant must be ‘a manufacturer’
(defined in Sch 2, s 7) and the goods must have a ‘safety defect’. Section 9(1)
of Sch 2 provides that:
… goods have a safety defect if their safety is not such as persons generally are entitled to expect.

Matters to be taken into account when applying this standard include (Sch
2, s 9(2)):
 the presentation of the product (manner of presentation, existence of
warnings, instructions, etc);
what might reasonably be expected to be done with or in relation to
the product; and
the time at which the product was supplied by its producer to another
person.
The four substantive provisions providing a remedy for ‘consumers’ under
the Australian Consumer Law for goods with safety defects are:
s 138 (injuries suffered by an individual);
s 139 (certain losses suffered by others as a result of those injuries);
s 140 (certain losses suffered by persons as a result of destruction of or
damage to goods caused by the defective goods); and
s 141 (certain losses suffered by persons as a result of destruction of or
damage to land, buildings or fixtures).
To be able to bring an action under the Australian Consumer Law, the
plaintiff must have suffered death or personal injury, or damage to property
(other than the product itself) which is of a kind ordinarily acquired for
personal, domestic or household use. The loss or damage suffered must not
have resulted solely from the product being used unreasonably.
If the loss suffered by a person claiming damages is caused by the defect
and their own act or omission, s 137A of the Competition and Consumer Act
2010 (Cth) requires that the ‘amount of the loss or damage is to be reduced to
such extent (which may be to nil) as the court thinks fit having regard to that
individual’s share in the responsibility for the loss or damage’.

9.129 An action for damage caused by goods with a safety defect may lie
against (Sch 2, s 7(1)):
the manufacturer or producer of the product;
any person who, by putting his or her name, trade mark or other
 distinguishing features on the product, represents himself or herself as
its manufacturer or producer;
the importer where the manufacturer or producer is located outside
Australia; or
each person in the supply chain if the manufacturer or producer
cannot be identified, unless, within a reasonable time, that supplier can
identify the manufacturer or producer or the person from whom the
product was acquired.

9.130 A person suffering loss from safety defect goods must bring the
action within three years from becoming aware, or ought to have been aware,
of the loss, the safety defect and

[page 190]

the identity of the manufacturer: Sch 2, s 143(1). Section 143(2) provides that
an action cannot be brought 10 years after the supply of the goods by the
manufacturer.
For defences, see Sch 2, s 142.

Further Reading
R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis
Butterworths, Sydney, 2013, Ch 7.
H Luntz, D Hambly, K Burns, J Dietrich and N Foster, Torts: Cases and
Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2012, Ch 7.

1. W R Cornish and G N Clark, Law and Society in England 1750–1950, Sweet & Maxwell, London,
1989, p 485.
2. For the situation in Australia, see I M Ramsay, ‘Educational Negligence and the Legalisation of
Education’ (1998) 11 UNSWLJ 11.
3. See S Corones, ‘Consumer Guarantees and the Supply of Educational Services by Higher
Education Providers’ (2012) 35 UNSWLJ 1. The author argues that the provision of educational
services by a university is engagement in trade or commerce: at 6–7.
[page 191]
 Chapter 10

Novel Duties of Care

1 Introduction
10.1 The majority of negligence actions will be based upon an established
duty of care: Tame v New South Wales; Annetts v Australian Stations Pty Ltd
(2002) 211 CLR 317; 191 ALR 449. The law has little trouble in recognising a
duty is owed when there is physical damage and consequential loss: Tame v
New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317;
191 ALR 449 at [15].

10.2 It is when a plaintiff claims other forms of damage in negligence that

the courts must identify whether a duty is owed outside the well-established
duties of care. The precise identification of the loss may be significant because
the harm for which compensation is being sought must be in relation to the
violation of a recognised legal right, otherwise no duty of care will be
recognised by the courts: Sullivan v Moody (2001) 207 CLR 562; 183 ALR 404
at [64]. As Ipp JA commented in Harriton v Stephens (2006) 226 CLR 52; 226
ALR 391 at [239]:
It is impermissible in law to separate “harm” from the concept of “duty of care”. The
proposition that actionable negligence is separate from proof of legally recoverable damage is
contrary to the established principle that damage is the gist of the cause of action in negligence.

Spigelman CJ commented, in the same case, that in a problematic case the

preferable starting point is ‘the identification of the loss which the [plaintiffs]
have suffered and the determination of whether there was a duty with respect
to that kind of loss’: at [11].
 Apart from personal injury and physical property damage, a plaintiff may
suffer pure psychiatric injury (injury that is not a consequence of their
personal injury) or pure economic loss (not a consequence of any property
damage) as a result of negligence. A plaintiff claiming either of these types of
damage must argue that a novel duty of care is owed to them. If the
relationship between the plaintiff and defendant falls within one of the
established duties of care, but the loss suffered is either pure psychiatric injury
or pure economic loss, the relationship is treated as novel as it must be
questioned whether the scope of the duty extends to protect against such loss:
see 9.5.

10.3 Further, due to policy grounds, for example the need to maintain
coherency in the law, if a plaintiff alleges negligence against a public
authority, it is treated as a novel duty, even if the loss suffered by the plaintiff
is personal injury or physical property damage.

[page 192]

10.4 This chapter examines the historical and current approaches of the
courts in determining whether a duty of care is owed in a novel situation. It
also discusses the novel duty of care in respect of:
pure psychiatric injury;
pure economic loss:
– relational loss (loss arising from damage to third party property);
– negligent provision of services;
– defective structures; and
public authorities.
Pure economic loss resulting from misrepresentation is considered in
Chapter 19.
 Although categorised as novel, a body of case law exists in respect of each,
identifying what in particular could influence a court in holding that a duty of
care exists. Therefore, for each category of novel duty, the cases will be
examined and these particular factors highlighted.

2 Historical Summary
10.5 Novel duties provide a legally more challenging situation mainly due
to the fact that there is no simple test to determine whether a duty is owed. A
variety of approaches to novel duties have developed and changed over the
years since the decision of Donoghue v Stevenson [1932] AC 562. However, all
approaches have been based upon Lord Atkin’s ‘neighbour’ principle and two
fundamental principles of the law:
1. the need for certainty in the law; and
2. the need for the law to be able to adapt to, and reflect, changes in
society.
The need for certainty in the law is often referred to as the ‘bright-line’ of
certainty. As Brennan J commented in Bryan v Maloney (1995) 182 CLR 609
at 653; 128 ALR 163 at 191:
… the law should be capable of application in solicitors’ offices. It should not have to await
definition in litigation.

A lack of certainty in the law has the potential not only to bring the law
into disrepute but also to create economic inefficiencies, especially in
commercial contexts and those other situations where it is usual to arrange
insurance to cover any potential liability in negligence. If the existence of a
duty of care is uncertain, then potential defendants may over- or under-
insure.
The second fundamental principle is important, as McHugh J commented
in Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606 at [92]:
 While [abiding by precedent] is a sound policy because it promotes predictability of judicial
decision and facilitates the giving of advice, it should not always trump the need for desirable
change in the law. In developing the common law, judges must necessarily look to the present
and to the future as well as to the past.

Also relevant is the need for the common law to be responsive to scientific,
medical and technological developments: Cattanach v Melchior (2003) 215
CLR 1; 199 ALR 131. Kirby J commented in Harriton v Stephens (2006) 226
CLR 52; 226 ALR 391 at [86]:

[page 193]

The problem in the present case is, in large part, an outcome of new technology that permits
genetic and other tests to identify grave foetal defects in utero and medical and social changes
that permit abortions to occur in some such cases that once would have been impossible,
unprofessional or even criminal. To apply logic alone would be to defy the wisdom of the law in
responding to a novel problem. It is necessary to draw on past examples expressed in very
different circumstances. But it is also necessary to adapt those principles to the circumstances of
the present case in the present time.

The fact that the Australian High Court is able to overturn its own previous
decisions is a recognition of the need for adaptability, but the reluctance of
the court to do so acknowledges the countervailing importance of the need
for certainty in the law.

10.6 In addition to these two fundamental principles of the common law,

when making a decision as to whether a duty of care exists in a novel fact
situation, a court also has to take into account the respective roles of courts
and parliaments in law-making. As Gleeson CJ noted in Brodie v Singleton
Shire Council; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512; 180
ALR 145 at [31] (Brodie):
Legislation and the common law are not separate and independent sources of law; the one the
concern of parliaments, and the other the concern of courts. They exist in a symbiotic
relationship.

The decision in Brodie itself illustrates the tension which may arise between
the respective law-making roles of the courts and parliament and of
reconciling the fundamental principles of the need for certainty and of the
need for adaptability in the law.
In Brodie, the central issue was whether the rule that a highway authority
was not liable for a failure to repair a highway — the ‘highway rule’ — should
be maintained or judicially re-expressed. Agreeing with the joint judgment of
Gaudron, McHugh and Gummow JJ, Kirby J stated in support of the re-
expression of the rule:
The criticisms of the rule … demand the conclusion that it is unprincipled and anomalous in
character and elusive and disputable in operation. It does not even have the merit of certainty …
This is not, therefore, a rule that has simply been overtaken by social change or other advances
in legal doctrine: at [277].

The three justices in dissent (Gleeson CJ, Hayne and Callinan JJ)
acknowledged the deficiencies in the content and application of the ‘highway
rule’ but, ultimately, decided that any change should be the province of
parliaments, not the courts. For example, Hayne J concluded that:
The solution to that problem lies in the hands of the legislatures, not the courts. It is the
legislatures which create the authorities. It is they who provide for the powers, duties and
resources of the authorities. It is they who can most readily regulate when and to what extent
individuals who suffer injury may recover from the authorities concerned: at [336].1

[page 194]

10.7 The difficulty in defining a unifying principle to identify a duty of

care was noted by Hayne J in Annetts v Australian Stations Pty Ltd (2002) 211
CLR 317; 191 ALR 449 at [250]:
“Neighbourhood”, “proximity”, the so-called “tripartite” test said to be derived from Lord
Bridge’s speech in Caparo Industries Plc v Dickman [[1990] 2 AC 605 at 617–18; [1990] 1 All ER
568 at 573–4], “vulnerability”, “general reliance” are all different attempts that have been made
to identify a satisfactory means of describing or defining the circumstances in which a duty of
care should be found to exist. At least some of these tests have now been rejected as either being
insufficiently informative or being inadequate to provide coherence in this area of the law. None
 has proved to be an all-embracing explanation for the way in which the law has developed and is
developing. [footnotes omitted]

Reasonable Foreseeability
10.8 In the cases decided in the decades immediately after the decision in
Donoghue v Stevenson [1932] AC 562, Lord Atkin’s explanation of the
‘neighbour’ principle at 580 (see 8.11) was interpreted as establishing
‘reasonable foreseeability’ as being the appropriate test for establishing
whether a duty of care existed in novel fact situations: Bourhill v Young [1943]
AC 92. The test was explained as requiring only a general foreseeability of the
kind of event that happened and not the precise sequence of events:
Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202 at 220; Chapman v
Hearse (1961) 106 CLR 112.
Since the reasonable foresight test alone could not be applied in every case
to determine the existence of a duty, there was clearly some other relevant
factor in deciding this question. It is now acknowledged that the additional
factor is judicial policy, discussed below at 10.32.

The Anns Approach

10.9 The need to accommodate and acknowledge policy considerations led
to a reformulation of Lord Atkin’s test by Lord Wilberforce in Anns v London
Borough of Merton [1978] AC 728 (Anns), building upon comments by Lord
Diplock in Home Office v Dorset Yacht Co Ltd [1970] AC 1004.
According to the ‘Anns approach’, the existence of a duty of care depended
upon a two-stage test:
first, was the harm reasonably foreseeable?; and
second, if it was, were there any policy grounds on which the law
should negate, or limit, the scope of the duty?
Lord Wilberforce attempted to bring policy out from its influential but
closeted existence by overtly recognising policy as the second stage in a two-
tiered approach to the duty of care question.

10.10 The general approach in Anns, and its specific application in local
authority cases, was initially accepted by Australian courts: Minister
Administering the Environmental Planning and Assessment Act 1979 v San
Sebastian Pty Ltd [1983] 2 NSWLR 268; Clarke v President, Councillors and
Ratepayers of the Shire of Gisborne [1984] VR 971; Travis v Vanderloos (1984)
54 LGRA 268 at 272. This acceptance was mirrored in other jurisdictions,
particularly in New Zealand (for example, in Takaro Properties Ltd v Rowling

[page 195]

[1978] 2 NZLR 314), and in Canada (for example, in Nielsen v City of

Kamloops 10 DLR (4th) 641 (1984)).

10.11 But the approach was not without its critics, particularly with regard
to the ease of satisfaction of the first stage, based, as it then appeared to be,
purely upon the factual test of reasonable foresight. The appropriateness of an
assumed prima facie duty for every category of case was, furthermore,
questionable. Consequently, during the 1980s and 1990s, some members of
the Australian High Court turned to the degree of proximity in the
relationship between the plaintiff and defendant as a means of determining
whether a duty of care should be owed in novel categories of case.

The Proximity Approach

10.12 The use of proximity as a unifying principle in the recognition of a
duty of care in novel fact situations was advocated by Deane J, with whom
Gibbs CJ agreed, in the pure psychiatric injury case of Jaensch v Coffey (1984)
155 CLR 549; 54 ALR 417. Deane J stated (at CLR 584; ALR 444):
 [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 the person or
property of the defendant, circumstantial proximity such as an overriding relationship of
employer and employee or of a professional man and his client and causal proximity in the
sense of the closeness or directness of the relationship between the particular act or cause of
action and the injury sustained …

His Honour explained the important feature of proximity as being a

‘continuing general limitation or control of the test of reasonable
foreseeability’: at CLR 584; ALR 443. The control was not to operate upon the
individual case but rather upon the category of case into which the individual
case fell. After the reasonable foreseeability of the kind of harm requirement
was satisfied, the proximity approach comprised two stages:
1. an assessment of the degree of closeness of the relationship between
the plaintiff and defendant including:
(a) physical proximity (in terms of time and space);
(b) circumstantial proximity (such as the overriding relationship
of employer and employee or professional and client); and
(c) causal proximity between the particular act or course of action
and the injury; and then
2. an evaluation of the legal consequences of that assessment.
Policy considerations could be articulated in conjunction with the first
stage for the particular category of relationship, leaving the opportunity for
further exclusion on different, more general policy grounds at the second
stage.

10.13 Proximity was used by the High Court in a number of difficult duty
cases in the intervening decade to 1995. See, for example, Jaensch v Coffey
(1983) 155 CLR 549; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160
CLR 16; 63 ALR 513; San Sebastian Pty Ltd v Minister Administering the
Environmental Planning and Assessment Act 1979 (1986)
 [page 196]

162 CLR 340; 68 ALR 161; Gala v Preston (1991) 172 CLR 243; 100 ALR 29;
and Bryan v Maloney (1995) 182 CLR 609; 128 ALR 163. In none of these
cases, however, did the justices relying on proximity articulate the detailed
steps in the process initially outlined as a two-stage process. Instead, the
application of the proximity test in actual cases led to the conclusion that
proximity was being used simply as a formula to announce a result, and not
as an explanation of how the steps in that process led to that result.

10.14 It was not surprising, therefore, that after changes in the

composition of the High Court in 1995 and 1996 (particularly the retirements
of Mason CJ and Deane J), when the court was next required to consider
whether a duty of care was owed in a novel fact situation, there was less
enthusiasm for the concept of proximity. In Hill (t/as R F Hill & Associates) v
Van Erp (1997) 188 CLR 159; 142 ALR 687 (Hill v Van Erp), in which the
critical issue was whether a solicitor can owe a duty to the beneficiary under a
client’s will, the majority of the justices either redefined the role of proximity
or entirely rejected the role previously claimed for the concept. For example,
McHugh J commented (at CLR 210; ALR 725):
The use of the concept or principle of proximity as the criterion of duty has not increased the
predictability of judicial decisions or given a real explanation of the grounds upon which a duty
of care is imposed in many economic loss cases … the present case has reinforced my scepticism
as to whether the concept of proximity gives any real guidance in determining the existence of a
duty of care in difficult and novel cases.

The Caparo Approach

10.15 Related to the proximity approach is the three-stage Caparo
approach, identified by Lord Bridge of Harwich in Caparo Industries Plc v
Dickman [1990] 2 AC 605 at 617–18:
The first stage requires, in common with all approaches, determining
 whether the kind of damage to the plaintiff was a reasonably
foreseeable result of the defendant’s negligence.
Second, if the damage was foreseeable, then a determination of
whether the relationship between the plaintiff and the defendant is
sufficiently proximate to justify the imposition of a duty of care is
required.
The third and final stage requires a consideration of whether it is ‘fair,
just and reasonable’ to impose a duty of care in the particular
circumstances of the case.
In Australia, the main advocate of the Caparo approach was Kirby J in
cases such as Pyrenees Shire Council v Day (1998) 192 CLR 330; 151 ALR 147;
Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606; and Crimmins v
Stevedoring Industry Finance Committee (1999) 200 CLR 1; 167 ALR 1.
However, it did not attracted the support of other members of the High
Court, and in Sullivan v Moody (2001) 207 CLR 562; 183 ALR 404, both the
proximity and Caparo approaches were rejected in the single joint judgment
of Gleeson CJ and Gaudron, McHugh, Hayne and Callinan JJ:
The formula is not “proximity”… It expresses the nature of what is in issue, and in that respect
gives focus to the inquiry, but as an explanation of a process of reasoning leading to a conclusion
its utility is limited … That is so, whether it is expressed as the ultimate test of a duty of care,

[page 197]

or as one of a number of stages in an approach towards a conclusion on that issue. What has
been described as the three-stage approach of Lord Bridge of Harwich in Caparo Industries Plc v
Dickman does not represent the law in Australia: at [48]–[49].

See also Sullivan v Moody (2001) 207 CLR 562; 183 ALR 404 at [48];
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; 196 ALR 337 at
[232]ff; Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR
515; 205 ALR 522 at [158]; Harriton v Stephens (2006) 226 CLR 52; 226 ALR
391 at [62]–[63].
The Incremental Approach
10.16 At the same time that Deane J was developing the proximity
approach, Brennan J, in the same court and in the same cases, was advocating
the ‘incremental approach’ as the replacement for the Anns two-stage
approach. This approach rejects the proposition that there is a ‘unifying
principle’ or ‘some general conception of relations giving rise to a duty of
care’. For example, in Sutherland Shire Council v Heyman (1985) 157 CLR
424 at 481; 60 ALR 1 at 43–4, Brennan J stated that it was preferable:
… that the law should develop novel categories of negligence incrementally and by analogy with
the established categories rather than by a massive extension of a prima facie duty of care
restrained only by indefinable “considerations which ought to negative or to reduce or limit the
scope of the duty or the class of person to whom it is owed”.

10.17 While there are variations of the incremental approach,2 an essential

feature of the approach is the rejection of the concept that novel cases can be
decided by the application of a broad unifying principle of liability such as
proximity. Instead, the approach advocates:
first, that the law should develop incrementally; and
second, that there are different ‘pockets’ or categories of liability in
negligence with each category being governed by different, although
complementary, legal principles and policy considerations.

10.18 In a novel fact situation, the incremental approach requires the

identification, by analogy, of a similar category (or categories) of duty cases.
Using a process of induction and deduction, the factors which were relevant
in that category of case then can be identified and applied to the case in hand.
An additional feature of the incremental approach is that it tends to be
conservative in approach and to see the creation of new rights as being the
province of the legislatures, rather than the common law courts; however, the
incremental approach might also ‘reveal’ common law rights that have not
previously been acknowledged.
10.19 With the eclipse of the proximity approach, other members of the
Australian High Court, in addition to Brennan J, have given qualified support
to the incremental approach. For example, in Perre v Apand Pty Ltd (1999)
198 CLR 180; 164 ALR 606, McHugh J

[page 198]

supported the incremental approach, but appeared to do so on the basis that

it was the ‘last approach left standing’. His Honour said about the incremental
approach:
It is not an approach that appeals to grand theorists who prefer to decide cases by general
principles applicable to all cases. But in an area of law … which is still developing … there is no
alternative to a cautious development of the law on a case by case basis. Perhaps another
unifying principle may emerge and gain widespread acceptance … Until a unifying principle
again emerges, however, the best solution is to proceed incrementally from the established cases
and principles: at [93].

Callinan J in Brodie (2001) 206 CLR 512; 180 ALR 145 at [316], however,
commented more bluntly, saying that the High Court had:
… at least for the moment, retreated to what is thought to be the safe haven of incremental
development, perhaps hoping that, in time, a unifying principle or principles will emerge.

10.20 Criticisms of the incremental approach include the fact that it

becomes ‘an accident of history’ whether a duty will be held to exist,
depending upon the point in time at which the particular novel fact situation
falls to be decided: see, for example, Gummow J in Crimmins v Stevedoring
Industry Finance Committee (1999) 200 CLR 1; 167 ALR 1. Callinan J, in
Brodie, also drew attention to the difficulty of determining, in a novel case,
which particular category or categories of case are sufficiently analogous to
justify finding whether or not a duty of care should be owed: see, for example,
Brodie at [317]; Cole v South Tweed Heads Rugby League Football Club Ltd
(2004) 217 CLR 469; 207 ALR 52.
10.21 The incremental approach, with its inbuilt discretions, appears to
provide no greater certainty or predictably than the approaches previously
discarded by the High Court. Nevertheless, despite the lack of enthusiasm for
the incremental approach among the members of the High Court, in the
decade since the decision in Hill v Van Erp (1997) 188 CLR 159; 142 ALR 687,
no other unifying principle has emerged to gain widespread acceptance in
Australia or in the common law world generally. In these circumstances, the
High Court has abandoned the search for some ‘unifying principle’ or
‘general conception of relations giving rise to a duty of care’ as referred to by
Lord Atkin in Donoghue v Stevenson [1932] AC 562 at 580. As their Honours
said in Sullivan v Moody (2001) 207 CLR 562; 183 ALR 404 at [50]–[52]:
Developments in the law of negligence over the last 30 or more years reveal the difficulty of
identifying unifying principles that would allow ready solution of novel problems. Nonetheless,
that does not mean that novel cases are to be decided by reference only to some intuitive sense
of what is ‘fair’ or ‘unfair’.

Similar sentiments about the lack of a single unifying principle to explain

when a duty of care is owed were recently expressed by Bryson J (with whom
Mason P agreed) in Sutherland Shire Council v Becker [2006] NSWCA 344 at
[97]:
With the benefit of observations of the High Court in Sullivan v Moody (2001) 207 CLR 562 at
578–579 it can be seen that it is no longer appropriate to use proximity as an explanation of the
process of reasoning leading to a conclusion of duty of care. It can be seen that proximity
expresses the nature of what is in issue, but it is authoritatively established that it no longer is
acceptable as an explanation of the process of reasoning. Notwithstanding its centrality in
negligence law

[page 199]

for more than a century, and its ready use to explain decisions for many decades, referred to in
Sullivan v Moody, the limits of its utility should now be respected. Neither ‘proximity’ nor any
other formulation is readily available in exposition of the basis of decision on duty of care.

The Salient Features Approach

10.22 The salient features approach has been applied by the High Court,
particularly in the novel categories of case involving pure economic loss (by
Gummow J, for example in Hill v Van Erp (1997) 188 CLR 159; 142 ALR 687)
and public authorities (for example by Gummow and Hayne JJ in Graham
Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; 196 ALR 337).
The salient features approach was discussed by Stephen J in Caltex Oil
(Australia) Pty Ltd v The Dredge ‘Willemstad’ (1976) 136 CLR 529; 11 ALR
227, where his Honour found a duty was owed to the plaintiff on the basis of
identifying the ‘salient features’ of the circumstances surrounding the parties’
relationships. Stephen J considered that these salient features combined to
create a sufficiently close relationship for the defendant shipowners to owe a
duty of care to Caltex, who suffered pure economic loss when the defendant
severed a pipeline connecting its oil terminal with that of Australian Oil
Refining Pty Ltd refining facilities.

10.23 In Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606,
Gummow J expressed his preference for Stephen J’s salient features approach
over the incremental approach, saying (at [201]):
I prefer the approach taken by Stephen J in Caltex Oil. His Honour isolated a number of “salient
features” which combined to constitute a sufficiently close relationship to give rise to a duty of
care owed to Caltex for breach of which it might recover its purely economic loss.

In Perre v Apand, the plaintiffs grew potatoes for export to Western

Australian markets. The defendant imported potato seeds infected with
bacterial wilt and planted them on a property neighbouring the plaintiff’s
property. As a result of the detection of the disease on the neighbouring
property, the plaintiffs were legislatively prohibited from selling their
potatoes in Western Australia. This was because the legislation prohibited the
importation of potatoes from within a 20 km radius of an affected property
regardless of whether the disease had been detected on the other properties
within that radius.

10.24 In applying the salient features approach, Gummow J identified

several features of the relationships in Perre v Apand as justifying the
imposition of a duty of care, including the defendant’s control of the situation
and, despite the commercial context in which they were operating, the
plaintiffs’ vulnerability. These salient features of control and vulnerability are
central to those factors requiring judicial evaluation, discussed below (at
10.28) in the context of the High Court decision in Sullivan v Moody (2001)
207 CLR 562; 183 ALR 404.

3 The Current Approach of the High

Court
10.25 In Fugro Spatial Solutions Pty Ltd v Cifuentes [2011] WASCA 102 at
[98]–[99], it was noted:
The law of negligence in Australia has in large measure moved away from inflexible fixed rules,
control mechanisms and categories in favour of rules of general application. …

[page 200]

However, the considerations or factors that underpinned the imposition of fixed rules, control
mechanisms and categories continue to be relevant to an assessment of whether there is a duty
of care, although the weight attaching to them may differ according to the circumstances of a
particular case.

Sullivan v Moody
10.26 The approach applied by High Court in Sullivan v Moody (2001) 207
CLR 562; 183 ALR 404 forms the basis of the current approach to novel duty
cases in Australia:
The kind of harm suffered by the plaintiff must be recognised as being
compensable and an infringement of a legally recognised right.
 The harm must also be recognised as having been a reasonably
foreseeable result of the defendant’s negligent conduct: Donoghue v
Stevenson [1932] AC 562.
Consistent with the incremental approach, the current approach
requires an analogy to be made with an established category (or
categories) of duty cases.
Then, by using a process of induction and deduction, the factors which
were relevant in that category of case can be identified and applied to
the case in hand.

10.27 However, since the suggested duty is novel (or falls on the boundary
of an established category), the next stage in the application of the Sullivan v
Moody approach involves the identification of the specific problems
associated with the class or category of case with which the analogy has been
made. It is at this stage that the salient features approach may be relevant
because of its focus on the specific features of the parties’ relationships
justifying the imposition of a duty of care.

10.28 The final stage of the Sullivan v Moody approach is a judicial

evaluation of the factors for and against the recognition of a duty of care in
the particular case under consideration. The factors requiring judicial
evaluation could, depending upon the circumstances and relationships of the
individual case, include:
the type of legally recognised right the plaintiff claims the defendant
has infringed, for example property or commercial rights, rights of
personal integrity (Sullivan v Moody (2001) 207 CLR 562; 183 ALR
404; Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216
CLR 515; 205 ALR 522; Harriton v Stephens (2006) 226 CLR 52; 226
ALR 391);
the nature of the relationship between the plaintiff and the defendant
compared with other duty relationships, for example co-workers,
professional and client (Tame v New South Wales; Annetts v Australian
Stations Pty Ltd (2002) 211 CLR 317; Bryan v Maloney (1995) 182 CLR
609; 128 ALR 163; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211
CLR 540; 196 ALR 337);
the factual context in which the proposed duty arises, including the
degree of control exercised by the defendant over the situation in
which the harm to the plaintiff occurred (Woolcock Street Investments
Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; 205 ALR 522; Crimmins v
Stevedoring Industry Finance Committee (1999) 200 CLR 1; 167 ALR 1;
Perre v Apand (1999) 198 CLR 180; 164 ALR 606 (for example,
Gaudron J at [33]); Hill (t/as R F Hill & Associates) v Van Erp (1997)
188 CLR 159; 142 ALR 687);

[page 201]

the vulnerability of the plaintiff and the degree to which the plaintiff is
able to protect against violation of its own personal and property
rights, which is something more than mere reliance (Brookfield
Multiplex Ltd v Owners Corp Strata Plan (2014) 254 CLR 185; 313 ALR
408; Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2003) Aust Torts
Reports ¶81-692; Perre v Apand (1999) 198 CLR 180; 164 ALR 606;
Hill (t/as R F Hill & Associates) v Van Erp (1997) 188 CLR 159; 142
ALR 687; Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 198 ALR
100; Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391);
the need to preserve the coherency of the law and the integrity of
existing legal relationships, including contractual and statutory
responsibilities, duties and obligations (Brookfield Multiplex Ltd v
Owners Corp Strata Plan (2014) 254 CLR 185; 313 ALR 408; Hunter
and New England Local Health District v McKenna; Hunter and New
England Local Health District v Simon (2014) 253 CLR 270; 314 ALR
 505; Sullivan v Moody (2001) 207 CLR 562; 183 ALR 404; Koehler v
Cerebos (Australia) Ltd (2005) 222 CLR 44; 214 ALR 355; Graham
Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; 196 ALR 337);
indeterminacy issues, including whether the imposition of liability will
greatly exceed fault (Caltex Oil (Australia) Pty Ltd v The Dredge
‘Willemstad’ (1976) 136 CLR 529; 11 ALR 227; Harriton v Stephens
(2006) 226 CLR 52; 226 ALR 391; Leichhardt Municipal Council v
Montgomery (2007) 230 CLR 22; 233 ALR 200);
decisions of overseas jurisdictions and recommendations of law reform
agencies (Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391;
Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22; 233
ALR 200; Brodie v Singleton Shire Council; Ghantous v Hawkesbury
Shire Council (2001) 206 CLR 512; 180 ALR 145); and
ethical and moral considerations, such as those referred to by Lord
Atkin in Donoghue v Stevenson [1932] AC 562, including the
protection of what are widely regarded as fundamental human rights:
Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217
CLR 469; 207 ALR 52, especially the judgment of Kirby J.
Note the warning against treating these factors as an exhaustive list in
Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649 at [104], where
after listing 17 salient features, Allsop P stated:
There is no suggestion in the cases that it is compulsory in any given case to make findings
about all of these features. Nor should the list be seen as exhaustive. Rather, it provides a non-
exhaustive universe of considerations of the kind relevant to the evaluative task of imputation of
the duty and the identification of its scope and content.

10.29 The basis of the plaintiff’s action in Sullivan v Moody (2001) 207
CLR 562; 183 ALR 404 was his wife’s allegation that he had sexually abused
their young daughter. Pursuant to its powers under the Community Welfare
Act 1972 (SA), the South Australian Department of Community Welfare had
investigated the allegation and referred the child to a medical practitioner
who came to the conclusion that the child had been sexually abused.
However, no criminal charges were laid against the father and when the
matter was pursued in Family Court proceedings, between the plaintiff and
his wife, the plaintiff was successful: at [12].

[page 202]

The plaintiff subsequently brought an action in negligence against the

doctor who carried out the examination and the department for authorising
and acting upon the examination results. The damage claimed was ‘shock,
distress and psychiatric harm, and consequential personal and financial loss’:
at [15]. The plaintiff alleged that the defendants were negligent both in
carrying out the medical examination and in the investigation into the
allegations of sexual abuse. In a single joint judgment, the High Court held
that the defendants owed no duty of care to the father.
Their Honours rejected both the proximity (see 10.12) and Caparo (see
10.15) approaches to determining whether a duty of care exists in novel fact
situations: at [48]–[49]. Instead, their Honours considered that:
Different classes of case give rise to different problems in determining the existence and nature
or scope, of a duty of care … The relevant problem will then become the focus of attention in a
judicial evaluation of the factors which tend for or against a conclusion, to be arrived at as a
matter of principle: at [53].

The defendants had conceded that the kind of harm suffered by the
plaintiff was compensable and a reasonably foreseeable result of the
defendant’s negligent conduct. The main issue was whether the nature of the
plaintiff’s relationship with the defendants was such that they owed him a
duty of care.
The ‘problem’ identified by the High Court in this ‘class of case’ was that
the negligent conduct essentially concerned the communication of
information, that being the results of the examination of the child and the
allegation of sexual abuse. If the action had been brought in defamation,
defences would have been available which are not available in a negligence
action: at [54]. Therefore, the court held that to recognise a duty of care owed
to the plaintiff, in these circumstances, would undermine the coherency of the
common law.
While their Honours acknowledged that it is possible for a person (or
government authority) to owe a duty to more than one person, in this case
they considered that the proposed duty cut across, and conflicted with, the
more established duties owed by the defendants at common law and under
the Community Welfare Act 1972 (SA). Consequently, to find that a duty was
also owed to the plaintiff would be inconsistent with these common law and
statutory duties and, for this reason as well, should not be recognised: at [60].
The spectre of indeterminate liability, both in terms of doctors’ liability to
third parties and in terms of the duty owed by the department to the alleged
perpetrators of sexual abuse, also arose for consideration in the circumstances
of this case. The plaintiff argued that the parent–child relationship provided
the necessary limitation on the scope of the duty of care owed by the
defendants. The High Court rejected this argument, saying that if such a duty
was recognised, there was no reason, in principle, why it could not be
extended to others, such as teachers and extended family members. Since
there was no remaining identifiable legal right which the plaintiff could show
to have been violated, there was no basis upon which to hold that the
defendants owed the father a duty of care: at [62]–[64].

Reasonable Foreseeability
10.30 As with every duty of care, the damage suffered by the plaintiff must
be the reasonably foreseeable consequence of the defendant’s breach. In
several of the cases

[page 203]
decided since its decision in Sullivan v Moody (2001) 207 CLR 562; 183 ALR
404, the High Court has revisited Lord Atkin’s neighbourhood test of
reasonable foreseeability in Donoghue v Stevenson [1932] AC 562. For
example, in the pure psychiatric injury cases of Tame v New South Wales;
Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; 191 ALR 449,
Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 198 ALR 100 and Koehler
v Cerebos (Australia) Ltd (2005) 222 CLR 44; 214 ALR 355, the High Court
has paid far more attention to the issue of reasonable foreseeability than had
been its practice.

10.31 In Tame v New South Wales; Annetts v Australian Stations Pty Ltd
(2002) 211 CLR 317; 191 ALR 449, several members of the High Court
challenged the perception that reasonable foreseeability is an ‘undemanding’
test and simply a matter of factual predictability. McHugh J commented that:
Because reasonable foreseeability is a compound conception of fact and value, policy
considerations affecting the defendant or persons in similar situations arguably enter into the
determination of whether the defendant ought reasonably to have foreseen that his or her acts or
omissions were “likely to injure your neighbour”: at [108].

Callinan J endorsed the approach of recognising reasonableness as a

touchstone for whether a duty of care should be owed and that the concept of
reasonableness should take into account the ‘realities of ordinary life’: at
[331]. Gleeson CJ opined (at [12]):
It is important that “reasonable foreseeability” should be understood and applied with due
regard to the consideration that, in the context of an issue as to duty of care, it is bound up with
the question whether it is reasonable to require a person to have in contemplation the risk of
injury that has eventuated.

His Honour also stated: ‘Ultimately, reasonableness defies rigorous

categorisation of its elements’: at [35].

Legal Principle v Legal Policy

10.32 Kirby J has written:3
Legal principle comes from an analysis of the emerging common themes of multiple decisions in
 connected areas of the law. Being itself a captive of past decisions, legal principle will not always
be of great assistance. In such circumstances, the quandary of judicial choice can be helped, and
judicial reasons will be made more transparent, by the identification of any policy
considerations that the judge takes into account.

Novel cases require judges with the responsibility of decision to evaluate the choices they make
by reference to considerations of legal policy. In the past, such questions were commonly
submerged in judicial reasoning expressed in verbal formulas. However, in most countries of the
common law today, judges in the higher courts, evaluate new cases by candid reference to, and
evaluation of, considerations of legal policy. Judicial attention to considerations of policy is not
new. What is new is the open judicial acknowledgment of it.

10.33 One of the earliest open acknowledgments of the influence of policy,

or normative considerations, on decisions in novel duty situations was by
Lord Reid in Home Office

[page 204]

v Dorset Yacht Co Ltd [1970] AC 1004. In that case, a government

department, the Home Office, negligently allowed some juvenile boys to
escape from a correctional facility. An action was brought against the
department by members of the public seeking compensation for property
damage caused by the boys during their escape. In finding for the plaintiffs,
the House of Lords rejected the department’s claim of an immunity. Lord
Reid said: ‘I can see no good reason in public policy for giving this immunity
to a government department’: at 1033.
As discussed above at 10.9, Lord Wilberforce also acknowledged the
importance of policy considerations in Anns v London Merton Borough
Council [1978] AC 728, as the second stage of a two-tiered approach to
whether a duty of care is owed in a novel fact situation:
… the position has now been reached that in order to establish that a duty of care arises in a
particular situation … the question has to be approached in two stages … Secondly, if the first
question is answered affirmatively, it is necessary to consider whether there are any
considerations which ought to negative, or to reduce or limit the scope of the duty or the class of
person to whom it is owed for the damages to which a breach of it may give rise: at 751–2.
Legal Policy v Public Policy
10.34 In discussing the role of policy in determining whether a duty of
care exists in a novel fact situation, it must first be understood that there is a
distinction between legal policy and public policy. In Cattanach v Melchior
(2003) 215 CLR 1; 199 ALR 131 at [75], McHugh and Gummow JJ endorsed
the following statement by Lord Radcliffe:
Public policy suggests something inherently fluid, adjusted to the expediency of the day, the
proper subject of the minister or the member of the legislature. The considerations which we
accept as likely to weigh with them are just not those which we expect to see governing the
decisions of a court of law. On the contrary, we expect to find the law indifferent to them,
speaking for a system of values at any rate less mutable than this.4

10.35 Second, it should be understood that the dividing line between legal
principle and legal policy is often difficult to discern. Stapleton, for example,
has written:
But I have yet to hear a compelling account of the difference between principle and policy. Is a
concern that liability not be indeterminate a principle or a policy? Is the judicially stated
concern that the law should not positively encourage abortion a principle or a policy?

She suggests instead:

In my opinion, therefore, we should ditch both the “principle” and “policy” terminology, and
simply describe these concerns neutrally as ‘legal concerns’ while openly acknowledging that
‘the law takes on new values and sheds old ones as society changes’.5

10.36 Finally, it must be understood that the courts can only consider
policy considerations in the absence of binding authority applying to the facts
of the particular case. Moreover, even in the absence of relevant legal
principles, the policies applied to decisions in novel duty situations must be
anchored in the legal principles and policies which have

[page 205]

developed during the more than 800-year history of the common law.
Nevertheless, the decision as to the choice of the relevant principles and
policies may in itself include a value or policy judgment. For example,
Callinan J, in Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire
Council (2001) 206 CLR 512; 180 ALR 145 at [317], drew attention to the
difficulty of determining in a novel case which particular category or
categories of case are sufficiently analogous to justify finding whether or not a
duty of care should be owed.

An example
10.37 An example of the selective use of legal principles and policy is
provided by the High Court decision in Cole v South Tweed Heads Rugby
League Football Club Ltd (2004) 217 CLR 469; 207 ALR 52. The plaintiff, Mrs
Cole, brought an action against the club because it had not prevented her
from leaving its premises when its employees knew she was in an intoxicated
condition. The plaintiff had been drinking at the club from approximately
9.30 am until 6.00 pm, although the club’s employees had last served her
alcohol at 12.30 pm. Cole refused an offer by the club’s manager of a lift home
and left the club. She was approximately 100 metres from the premises when
she was struck by a motor vehicle. At that time she had a blood alcohol
reading of 0.238, the equivalent of about 16 standard drinks.
Cole sued the motorist and the club and was partially successful against
both, in that they were each held 30 per cent liable, while she was held 40 per
cent contributorily negligent. On appeal, both defendants were successful and
Cole appealed to the High Court in relation only to the action against the
club.
By a 4:2 majority, the High Court rejected Cole’s appeal. Gleeson CJ and
Callinan J separately held that the club owed no duty of care to the plaintiff.
Gummow and Hayne JJ, in a joint judgment, rejected the appeal on the
grounds that even if there was a duty of care owed (a point their Honours
declined to decide), there was no breach of that duty. In dissent, McHugh and
Kirby JJ each held that the club did owe a duty of care to Cole and that the
other elements of the negligence action were also satisfied.
Fundamentally, Cole v South Tweed Heads Rugby League Football Club Ltd
concerned two long-established but, in the circumstances of the present case,
conflicting common law principles: the first was the general rule that ‘a
person has no legal obligation to rescue another’: at [15] per Gleeson CJ; and
the second, that an occupier of premises ‘owes a duty to take reasonable care
for the safety of those who enter the premises’: at [30] per McHugh J. In their
reasons, generally, Gleeson CJ and Callinan J placed greater reliance on the
first principle, while McHugh and Kirby JJ thought the second was more
important in all the circumstances of the case.
Another relevant issue was the New South Wales legislation governing the
operation of clubs — the Registered Clubs Act 1976. Gleeson CJ and Callinan
J considered that no greater duty should be imposed on the club than that
contained within s 44A of the legislation: at [16] per Gleeson CJ. McHugh
and Kirby JJ, on the other hand, considered that, while the Act itself did not
give rise to a statutory cause of action, the Act revealed parliament’s
recognition and acceptance of the vulnerability of persons who consume
excessive amounts of alcohol, and that the common law should do likewise:
for example, at [95] per Kirby J.

[page 206]

The essential difference between the approaches of Gleeson CJ and

Callinan J, and that of McHugh and Kirby JJ, were their respective views as to
the relevant duty category and underlying policy considerations in cases of
this kind. For example, Gleeson CJ commented (at [18]):
The consequences of the [plaintiff’s] argument as to duty of care involve both an unacceptable
burden upon ordinary social and commercial behaviour, and an unacceptable shifting of
responsibility for individual choice. The argument should be rejected.
 In contrast, Kirby J was critical of the ‘withered view of community and
legal neighbourhood propounded by Gleeson CJ and Callinan J’: at [93]. His
Honour commented (at [94]):
… to hold that the Club owed no duty of care by the standards of the common law of
negligence, to patrons such as the [plaintiff], is unrealistic … The policy reasons, concerned with
free will and personal autonomy, that might in other circumstances justify withholding the
imposition of a duty of care are overridden, in the case of the Club, by the commercial interest it
had in the presence of the appellant on its premises and the known propensity of the alcoholic
product, made available there, to expose at least some individuals to the risk of serious harm.

4 Scope of the Duty

10.38 As with established duties of care, the scope of the novel duty must
be identified to allow the issue of breach to be determined: Kuhl v Zurich
Financial Services Australia Ltd (2011) 243 CLR 361; 276 ALR 375 at [22];
Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22; 233 ALR
200 at [8].
The scope of the novel duty is defined with reference to the loss suffered by
the plaintiff and the conduct of the defendant.

10.39 The statutory context, within which the common law operates, may
be relevant to a court deciding the existence and nature or scope of a
common law duty of care. This has been stressed by the High Court in cases
such as Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; 196 ALR
337, where McHugh J commented that a statutory power is not the source of
a common law duty of care, but that it may be an important factor in finding
that a common law duty of care also was owed: at [80]. Comments to similar
effect were made by Gummow and Hayne JJ in New South Wales v Fahy
(2007) 232 CLR 486; 236 ALR 406 at [26], when their Honours commented
that, when determining the existence or boundaries of a duty of care in a
novel fact situation:
… it is necessary and important to recognise that [the duty is] framed in a way that takes proper
 account of the statutory framework provided … for the performance of police duties.

See also Roads and Traffic Authority of New South Wales v Dederer (2007)
234 CLR 330; 238 ALR 761; Cole v South Tweed Heads Rugby League Football
Club Ltd (2004) 217 CLR 469; 207 ALR 52.

5 Pure Psychiatric Injury

10.40 The common law has traditionally been reluctant to recognise pure
psychiatric injury as a compensable kind of damage, primarily because of
concerns about imaginary

[page 207]

and pretend claims. These concerns were compounded by the fear of a ‘flood’
of claims and the difficulty of knowing where to draw the line between
physical and psychiatric injury.6 The initial approach of the common law
courts, therefore, was to hold that pure psychiatric injury (or ‘nervous shock’,
as it was then called) was not a kind of damage recognised by the common
law: Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222;
Dulieu v White [1901] 2 KB 669.

10.41 After the decision in Donoghue v Stevenson [1932] AC 562, the test
for whether a duty of care was owed in regard to pure psychiatric injury
became whether that kind of injury was reasonably foreseeable by the
defendant when the breach of the duty occurred: Bourhill v Young [1943] AC
92; McLoughlin v O’Brian [1983] AC 410; Attia v British Gas plc [1988] QB
304; Jones v Wright [1991] 3 All ER 88.
In 1939, the test of reasonable foreseeability was used by the Australian
High Court in Chester v Waverley Corporation (1939) 62 CLR 1 to justify
holding that no duty of care was owed to a mother who suffered nervous
shock after witnessing her child’s dead body being retrieved from a ditch. The
decision was based upon the somewhat surprising finding by the High Court
that nervous shock might have been foreseeable if the mother had actually
seen the child drown, but not where all she saw was the recovery of the child’s
body: see also Boardman v Sanderson [1964] 1 WLR 1317.

10.42 However, it was the High Court decision in Jaensch v Coffey (1984)
155 CLR 549; 54 ALR 417 which set the scene in regard to determining
whether pure psychiatric injury could be recovered in a negligence action for
the remainder of the 20th century. The plaintiff in Jaensch v Coffey developed
a psychiatric illness, characterised by anxiety and depression, due to what she
saw and heard at the hospital to which her husband had been admitted after
being seriously injured due to the defendant’s negligent driving. Although the
plaintiff was not injured herself, nor present at the scene of the accident, she
witnessed the aftermath at the hospital where her husband was treated soon
after the accident. In these circumstances, the High Court held that the
factual circumstances of the close and loving relationship between the
plaintiff and the victim meant that it was reasonably foreseeable that she
could suffer a pure psychiatric injury.
Whether a duty of care will be owed in relation to a pure psychiatric injury
is now governed by the same general principles as other negligence actions:
Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211
CLR 317; 191 ALR 449.

10.43 To prove a duty of care, the plaintiff must establish that they are
suffering a recognised psychiatric injury that is the reasonably foreseeable
consequence of the defendant’s negligent act or omission. Then under the
current approach to establishing a novel duty, the relevant factors identified
in Sullivan v Moody (2001) 207 CLR 562; 183 ALR 404 must be considered.
The cases in this category of novel duty highlight that reasonable
foreseeability, the relationships between the parties, the control of the
defendant and the vulnerability of the plaintiff and the issue of indeterminacy
are particularly relevant.

[page 208]

Recognised Psychiatric Injury

10.44 The first Australian High Court decision to recognise the existence
of a duty of care in regard to pure psychiatric injury was Mount Isa Mines Ltd
v Pusey (1970) 125 CLR 383; [1971] ALR 253. The employer was held to be in
breach of the duty it owed to its employee when he went to the rescue of
workmates who had suffered massive burns as a result of their employer’s
negligence. Recovery was limited to those circumstances where an identifiable
psychiatric or psychopathological disorder was diagnosed. Windeyer J stated
(at CLR 394; ALR 258–9):
Sorrow does not sound in damages. A plaintiff in an action of negligence cannot recover
damages for a “shock”, however grievous, which was no more than an immediate emotional
response to a distressing experience sudden, severe and saddening. It is, however, today a
known medical fact that severe emotional distress can be the starting point of a lasting disorder
of mind or body, some form of psychoneurosis or a psychosomatic illness. For that, if it be the
result of a tortious act, damages may be had.

In Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002)
211 CLR 317; 191 ALR 449 at [193], the High Court held:
In Australia … a plaintiff who is unable affirmatively to establish the existence of a recognisable
psychiatric illness is not entitled to recover. Grief and sorrow are among the “ordinary and
inevitable incidents of life”; the very universality of those emotions denies to them the character
of compensable loss under the tort of negligence. Fright, distress or embarrassment, without
more, will not ground an action in negligence.

See also Jaensch v Coffey (1984) 155 CLR 549; 54 ALR 417; Gifford v Strang
Patrick Stevedoring Pty Ltd (2003) 198 ALR 100; CSR Ltd v Della Maddalena
(2006) 80 ALJR 458.

10.45 The civil liability legislation in some jurisdictions provides that there
is no recovery in negligence unless the mental harm is a recognised
psychiatric illness: 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
5S(1).

10.46 In regard to consequential psychiatric injury, the common law

allows recovery for mental harm, however minor, provided it is consequential
upon a physical injury: Nader v Urban Transit Authority (1985) 2 NSWLR
501. This continues to be the situation in Queensland and the Northern
Territory. In other Australian jurisdictions, the common law has changed by
virtue of the legislation: Civil Law (Wrongs) Act 2002 (ACT) s 35(2); Civil
Liability Act 2002 (NSW) s 33; Civil Liability Act 1936 (SA) s 53(3); Civil
Liability Act 2002 (Tas) s 35; Wrongs Act 1958 (Vic) s 75; Civil Liability Act
2002 (WA) s 5T. In these jurisdictions, consequential mental harm is
compensable only if it amounts to a ‘recognised psychiatric illness’.
See Flight Centre Ltd v Louw (2010) 78 NSWLR 656 where it was held that
although the appellant had suffered pure mental harm (inconvenience,
distress and disappointment suffered as a result of interruption of appellant’s
holiday at a tropical resort due to construction work), it did not consist of a
recognised psychiatric illness for the purposes of s 31 of the Civil Liability Act
2002 (NSW).

[page 209]

Reasonable Foreseeability
10.47 The issue of reasonable foreseeability may be influenced by the
factual context (including any contractual or statutory duties and obligations)
of the relationships between the parties to the action: Gifford v Strang Patrick
Stevedoring Pty Ltd; Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; 214
ALR 355.

10.48 The foreseeability of the plaintiff’s psychiatric injury must be

assessed as at the time of the negligent act or omission: Koehler v Cerebos
(Australia) Ltd. Since the decision of Tame v New South Wales; Annetts v
Australian Stations Pty Ltd (2002) 211 CLR 317; 191 ALR 449, the test for
reasonable foreseeability in claims of pure psychiatric injury involves a
consideration of normal fortitude, direct perception and sudden shock.
Gaudron J explained (at [59]):
It is in the context of foreseeability that the “sudden shock” and “normal fortitude” rules fall for
consideration. When the law limited claimants to those who, by reason of their closeness in time
or space, directly perceived distressing phenomena or their aftermath, as was implicit in the
categories of persons identified by Evatt J in [Chester v Waverley Corporation (1939) 62 CLR 1 at
44], it was inevitable that the law should select sudden shock as that which rendered foreseeable
the risk of psychiatric injury.

So, too, because “reasonable foreseeability is an objective criterion of duty” [Jaensch v Coffey
(1984) 155 CLR 549 at 568; 54 ALR 417 at 431 per Brennan J], it is understandable that the law
selected “a normal person of ordinary firmness and mental stability” [Chester v Waverley
Corporation (1939) 62 CLR 1 at 28 per Evatt J] as a general test of foreseeability of the risk of
psychiatric injury in the case of those who directly perceived distressing events or their
aftermath.

Normal fortitude
10.49 In Jaensch v Coffey (1984) 155 CLR 549 at 556; 54 ALR 417 at 421,
Gibbs CJ stated:
It may be assumed (without deciding) that injury for nervous shock is not recoverable unless an
ordinary person of normal fortitude in the position of the plaintiff would have suffered some
shock.

10.50 In Tame v New South Wales (2002) 211 CLR 317; 191 ALR 449, the
appellant was involved in a motor vehicle collision due to the fault of the
other driver who had a blood alcohol content reading of 0.14. A police officer
subsequently completed the details of the traffic collision report by
mistakenly recording both drivers’ blood alcohol content as 0.14. This error
was detected within a short time and corrected. The appellant was awarded
damages for the injuries she received in the accident, but during negotiations
it was discovered that the insurer had a copy of the unamended report. The
appellant became obsessed with the mistake on the form, worrying about the
effect the mistake would have on her reputation, despite being told that it had
been corrected and receiving a formal apology from the Police Service. The
appellant was diagnosed as suffering from psychotic depressive illness, and
the evidence was that the appellant was predisposed to psychotic depression.
The appellant sued in negligence claiming that the police officer owed a duty
of care and that the state was vicariously liable as the employer.

[page 210]

The High Court held that reference to the hypothetical person of ‘normal
fortitude’ was merely the application of a standard to assist in determining
the reasonable foreseeability of harm and was not to be used to deny recovery
to a plaintiff unless they are of ‘normal fortitude’: at [199] per Gummow and
Kirby JJ.
McHugh J explained (at [109]–[110]):
Once the notion of reasonableness regains its rightful place at the front of the negligence
inquiry, it must follow that a defendant is entitled to act on the basis that there will be a normal
reaction to his or her conduct. The position is different if the defendant knows that the plaintiff
is in a special position. But otherwise the defendant should not be penalised for abnormal
reactions to his or her conduct.

To insist that the duty of reasonable care in pure psychiatric illness cases be anchored by
reference to the most vulnerable person in the community — by reference to the most fragile
psyche in the community — would place an undue burden on social action and communication.
To require each actor in Australian society to examine whether his or her actions or statements
might damage the most psychiatrically vulnerable person within the zone of action or
communication would seriously interfere with the individual’s freedom of action and
communication. To go further and require the actor to take steps to avoid potential damage to
the peculiarly vulnerable would impose an intolerable burden on the autonomy of individuals.
 Ordinary people are entitled to act on the basis that there will be a normal reaction to their
conduct. It is no answer to say that the defendant ought to be liable to peculiarly vulnerable
persons because the defendant is guilty of careless conduct. The common law of negligence does
not brand a person as careless unless the law has imposed a duty on that person to avoid
carelessly injuring others.

10.51 If the defendant is aware of the plaintiff’s ‘special position’, this will
affect the issue of whether the risk of psychiatric injury was reasonably
foreseeable. In Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; 214 ALR
355, the appellant sued her employer in negligence for the psychiatric injury
she suffered in the course of her employment. The appellant could not carry
out her duties to her satisfaction and repeatedly informed management that
changes had to be made. Five months after commencing work the appellant
fell ill, and the evidence was that she was suffering from a psychiatric illness
caused by her work.
The High Court held that the risk of psychiatric illness was not reasonably
foreseeable. McHugh, Gummow, Hayne and Heydon JJ held (at [28]):
In this case it is enough to notice that her agreement to undertake the work runs contrary to the
contention that the employer ought reasonably to have appreciated that the performance of
those tasks posed a risk to the appellant’s psychiatric health. It runs contrary to that contention
because agreement to undertake the work not only evinced a willingness to try but also was not
consistent with harbouring, let alone expressing, a fear of danger to health. That is why the
protests the appellant made (that performance of the work within the time available seemed
impossible) did not at the time bear the significance which hindsight may now attribute to them.
What was said did not convey at that time any reason to suspect the possibility of future
psychiatric injury.

See also Woolworths Ltd v Perrins [2015] QCA 207 at [72], where it was
stated that ‘the notion that informing an employee that they had failed to
meet certain objective criteria,

[page 211]

expected of all employees, previously laid down and previously advised,

would result in decompensation into psychiatric illness does not seem to me
to be “reasonably foreseeable”’.

Direct perception
10.52 The House of Lords in McLoughlin v O’Brian [1983] 1 AC 410
allowed recovery for psychiatric illness suffered by the plaintiff after attending
the hospital at which her husband and children were at after being involved in
an accident. Lord Wilberforce held that ‘the shock must come through sight
or hearing of the event or of its immediate aftermath’: at 423. The High Court
considered this case in Jaensch v Coffey (1984) 155 CLR 549; 54 ALR 417, in
which also the plaintiff did not witness the accident which injured her
husband, but witnessed the aftermath of the accident at the hospital. Deane J
held (at CLR 591; ALR 449–5):
The fact that a husband or wife goes straight to the hospital where his or her injured spouse is
being, or has been, taken rather than to the actual scene of the accident cannot rationally be said
to have the effect that the relevant risk of injury by way of nervous shock can no longer be
regarded as having been reasonably foreseeable. For that matter, it is easy to envisage
circumstances, such as an injury to the spinal cord caused in a bloodless accident, in which the
shock sustained by involvement in the aftermath of the accident on attendance at the hospital
would render insignificant any shock which was or would have been sustained by prior
attendance at the scene of the accident. Indeed, the present would appear to be such a case in
that the more serious injuries sustained by Mr Coffey, namely the injuries to his liver and
kidneys, were only identified after he had been taken to hospital. If the scope of the duty of care
of a user of the highway is to be limited as extending only to other users of the highway and
those persons who actually attend the scene of an accident, it must be on some basis other than a
genuine or realistic consideration of reasonable foreseeability. It follows that the answer to the
first of the above questions is that the fact that Mrs Coffey sustained nervous shock at the
hospital rather than at the scene of the accident cannot rationally be seen as having the
consequence that the risk of such injury to her was not reasonably foreseeable.

10.53 In Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; 191
ALR 449, the High Court had to consider whether it was reasonably
foreseeable that the appellants, parents of the respondent’s employee, would
suffer psychiatric injury even though they did not present at the incident or
the aftermath. In that case the appellants’ son went to work as a jackeroo for
the respondent in Western Australia. Prior to their son’s employment, the
appellants made inquiries of the respondent as to the safety arrangements and
only agreed to his employment upon being assured that he would be under
constant supervision. After only seven weeks, their son was sent to work
alone as a caretaker in a remote location. It was then discovered that he was
missing and the circumstances were such to indicate he was in grave danger.
When the police informed Mr Annetts of this over the telephone, he
collapsed. A prolonged search was carried out and two months later the son’s
bloodstained hat was found, but it was not for another three months that his
body was found. The appellants had travelled from their home in New South
Wales to Western Australia several times upon discovering that their son was
missing. Mr Annetts returned to Western Australia to identify the remains of
his son from a photograph.
The members of the High Court observed that to allow only plaintiffs who
have directly perceived a distressing event or its aftermath to recover for
psychiatric harm was ‘apt

[page 212]

to produce arbitrary outcomes and to exclude meritorious claims’: at [221].

Gaudron J reasoned that the ‘direct perception’ rule was not determinative of
those who may claim in negligence for pure psychiatric harm: at [51].
Gleeson CJ held that to differentiate between parents of a child lost in a desert
and those who witness their child being run down by a car, was indefensible
when the parents suffered the same harm: at [36].

10.54 In Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269;
198 ALR 100 at [9], Gleeson CJ reiterated that:
Rejection of a “control mechanism”, such as the need for direct perception of an incident or its
aftermath, originally devised as a means of giving practical content to that consideration, does
not involve rejection of the consideration itself.
 The distance in time and space from the event are to be taken into account
when considering whether the psychiatric harm is reasonably foreseeable, but
a lack of direct perception of the incident or its aftermath does not preclude a
duty of care: Tame v New South Wales; Annetts v Australian Stations Pty Ltd;
Gifford v Strang Patrick Stevedoring Pty Ltd.

10.55 If a lack of direct perception does not preclude a duty of care, this
raises the question of how far may reasonable foreseeability of psychiatric
harm extend? Gummow and Kirby JJ in Tame v New South Wales; Annetts v
Australian Stations Pty Ltd at [225] noted that the means of communication
may be relevant to reasonable foreseeability.
The Queensland Court of Appeal decision of Hancock v Nominal
Defendant [2002] 1 Qd R 578 may predate the decisions of the High Court,
but it allowed recovery of damages for psychiatric harm even though the
plaintiff did not attend the scene of the accident which killed his son or its
aftermath. The plaintiff was referred to by the court as a ‘secondary victim’
due to his lack of direct perception. The death of his son was communicated
to the plaintiff by telephone the morning after the motor vehicle accident.
The police informed the plaintiff that the deceased’s body was so badly
injured that visual identification would not be possible. It took until mid-
afternoon for dental records to confirm that the deceased was in fact the
plaintiff’s son.
Davies JA extensively reviewed the case law of the United Kingdom,
France, Germany and Australia and other common law countries in his
judgment. His Honour referred to the judgment of Kirby P (as he then was)
in Coates v Government Insurance Office of New South Wales (1995) 36
NSWLR l at 10:
… hearing by telephone, or by later oral message, can, in today’s world, be just as foreseeable
and just as directly related to the wrong sued upon as if the vulnerable observer had received the
shocking perception by his or her own eyes and ears at the moment of the relevant wrong. The
rule of actual perception is in part a product of nineteenth century notions of psychology and
psychiatry. In part, it was intended as a shield of policy against expanding the liability of
 wrongdoers for the harm they caused. And in part, it was a reflection of nineteenth century
modes of communicating information.

10.56 Note, however, when the plaintiff has not witnessed the accident or
the aftermath, the cases refer to the close relationship between the plaintiff
and the victim as relevant: Coates v Government Insurance Office of New
South Wales at 9–10; Hancock v Nominal Defendant [2002] 1 Qd R 578; Tame
v New South Wales; Annetts v Australian Stations Pty

[page 213]

Ltd (2002) 211 CLR 317; 191 ALR 449 at [222]; Gifford v Strang Patrick
Stevedoring Pty Ltd (2003) 214 CLR 269; 198 ALR 100: Some jurisdictions
have legislation that prevents an award of damages unless the plaintiff was at
the scene of the accident or is in one of the specified relationships with the
victim: see 10.59.

Sudden shock
10.57 From Deane J’s judgment in Jaensch v Coffey (1984) 155 CLR 549;
54 ALR 417, it was understood that to be able to recover for pure psychiatric
injury the plaintiff must have suffered a sudden shock: see, for example, Reeve
v Brisbane City Council [1995] 2 Qd R 661 at 675–7; Pham v Lawson (1997)
68 SASR 124 at 149. This was also the approach in England: see, for example,
Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 400,
401, 417; Liverpool Women’s Hospital NHS Foundation Trust v Ronayne
[2015] EWCA Civ 588 at [17].

10.58 However, a majority of the High Court in Tame v New South Wales;
Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; 191 ALR 449 held
(Callinan J dissenting) that the requirement of sudden shock was not a part of
Australian law: at [18], [66], [213], [236]. Therefore, in Annetts v Australian
Stations Pty Ltd (2002) 211 CLR 317; 191 ALR 449, it was not fatal to the
appellants’ claim that the psychiatric injury had developed over time as they
waited for the son to be found. Gleeson CJ stated (at [36]):
The process by which the applicants became aware of their son’s disappearance, and then his
death, was agonizingly protracted, rather than sudden. And the death by exhaustion and
starvation of someone lost in the desert is not an “event” or “phenomenon” likely to have many
witnesses. But a rigid distinction between psychiatric injury suffered by parents in those
circumstances, and similar injury suffered by parents who see their son being run down by a
motor car, is indefensible.

See also Wicks v State Rail Authority (NSW) (2010) 241 CLR 60; 267 ALR
23 at [27]–[29].

Civil liability legislation

10.59 Although it was not part of the Ipp Report recommendations, all
jurisdictions, except the Northern Territory and Queensland, included
mental harm in the civil liability legislation. For example, s 32 of the Civil
Liability Act 2002 (NSW) provides:
(1) A person (the defendant) does not owe a duty of care to another
person (the plaintiff) to take care not to cause the plaintiff mental
harm unless 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.
(2) For the purposes of the application of this section in respect of pure
mental harm, the circumstances of the case include the following:
(a) whether or not the mental harm was suffered as the result of a
sudden shock.
(b) whether the plaintiff witnessed, at the scene, a person being
killed, injured or put in peril.
(c) the nature of the relationship between the plaintiff and any
person killed, injured or put in peril.
 [page 214]

(d) whether or not there was a pre-existing relationship between

the plaintiff and the defendant.
See also Civil Law (Wrongs) Act 2002 (ACT) s 34; Civil Liability Act 1936
(SA) s 33; Civil Liability Act 2002 (Tas) s 34; Wrongs Act 1958 (Vic) s 78;
Civil Liability Act 2002 (WA) s 5S.
In Wright bht Wright v Optus Administration Pty Ltd [2015] NSWSC 160,
the court held that s 32(2) of the Civil Liability Act 2002 (NSW) restated the
law as in Tame v New South Wales; Annetts v Australian Stations Pty Ltd
(2002) 211 CLR 317; 191 ALR 449. However, subsection (1) added the
requirement that the plaintiff had to establish that the defendant ought to
have foreseen that a person of normal fortitude might suffer a recognised
psychiatric illness in the circumstances: at [81].

Relevant Factors
10.60 The fact that the risk of pure psychiatric harm is reasonably
foreseeable does not by itself impose a duty of care upon the defendant.
Under the approach of Sullivan v Moody (2001) 207 CLR 562; 183 ALR 404, a
court must also consider the nature of the relationships between the parties,
the vulnerability of the plaintiff, the control of the defendant, any
indeterminacy issues and the coherency of the law.

Relationships between parties

10.61 In establishing a duty of care for pure psychiatric injury, the
relationships between the parties is an important factor. The nature of the
parties’ relationships is particularly important where the plaintiff indirectly
suffers a pure psychiatric injury (sometimes referred to as the ‘secondary
victim’). This usually occurs because the plaintiff is in a ‘close and loving
relationship’ with the victim but was not present during the shocking event or
its immediate aftermath. As Gaudron J commented in Tame v New South
Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; 191 ALR
449 at [52]:
To identify those who may claim for pure psychiatric injury as those who should be in the
contemplation of the person whose acts or omissions are in question as persons closely and
directly affected is not to say that the categories of persons who may recover damages for pure
psychiatric injury are open-ended. Save for those who fall within the ‘direct perception rule’, as
extended by Jaensch v Coffey, a person will be able to recover for psychiatric injury if there is
some special feature of the relationship between that person and the person whose acts or
omissions are in question such that it can be said that the latter should have the former in
contemplation as a person closely and directly affected by his or her acts.

10.62 In Annetts, the court took into account the fact that the appellants
were the parents of the victim who was an employee of the respondent. Also
important was the fact that there was a relationship between the appellants
and the respondent, as the appellants had sought reassurance from the
respondent as to the safety of their 16-year-old son before agreeing to his
employment with them. Hayne J held (at [237]):
The connections between the parties indicate the existence of a duty of care. An antecedent
relationship between the plaintiff and the defendant, especially where the latter has assumed
some responsibility to the former to avoid exposing him or her to a risk of psychiatric harm,
may supply the basis for importing a duty of care.

[page 215]

See also Hancock v Nominal Defendant [2002] 1 Qd R 578.

10.63 It is not necessary that the plaintiff be related to the victim. In

Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269; 198 ALR 100
at [48], McHugh J stated:
It is the closeness and affection of the relationship — rather than the legal status of the
relationship — which is relevant in determining whether a duty is owed to the person suffering
psychiatric harm. The relationship between two friends who have lived together for many years
may be closer and more loving than that of two siblings. There is no policy justification for
 preventing a claim for nervous shock by a person who was not a family member but who has a
close and loving relationship with the person harmed or put in peril. In a claim for nervous
shock at common law, the reasonable foresight of the defendant extends to all those with whom
the victim has or had a close and loving relationship.

Vulnerability and control

10.64 When referring to vulnerability of the plaintiff in claims for pure
psychiatric injury, the reference is to the issue of whether the plaintiff was
unable to protect themselves against the harm, not that they were vulnerable
in the sense of being more susceptible to psychiatric harm. That issue would
be considered in relation to the reasonable foreseeability of the harm: Tame v
New South Wales (2002) 211 CLR 317; 191 ALR 449.

10.65 The appellants in Annetts had to rely upon the respondent as the
employer of their 16-year-old son to ensure that he was supervised properly
and therefore were vulnerable. There was similar control by the respondent in
Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269; 198 ALR
100. In that case the High Court held that the appellants were vulnerable in
that they could not protect themselves against the psychiatric harm. Further,
the respondent had control over the workplace, giving it control of the risk to
its employee and therefore control of the risk of psychiatric harm to the
appellants: at [90].

10.66 In Sklavos v Australasian College of Dermatologists [2016] FCA 179,

the appellant claimed that the respondent owed him a duty of care to exercise
reasonable care to avoid psychiatric injury when it made allegations, reports
and sanctions for breaches of professional behaviour. The appellant was a
trainee with the respondent, a relationship that was formally documented
with the respondent having power over the appellant’s progress through the
training program that lasted a number of years. Although the respondent
denied the existence of a duty of care, no arguments were made on this issue
before the court. However, Jagot J noted that the respondent was in a position
of control as it had assumed responsibility for the training of the appellant
and the training program was the only pathway in Australia to enable a
doctor to practise as a dermatologist. The appellant had only limited means to
protect himself from the respondent’s exercise of power and therefore was
vulnerable.

Indeterminacy
10.67 When the plaintiff suffers pure psychiatric harm due to a negligent
act or omission in which they are involved, the issue of indeterminate liability
is unlikely to prevent a duty of care being owed as the class of plaintiff would
be restricted and loss ascertainable.

[page 216]

10.68 However, if the plaintiff is a secondary victim, indeterminate

liability may be a relevant issue. The requirement of a relationship of close
ties of affection between the plaintiff and the victim addresses this issue and
as Butler notes:
It is a fallacy to believe, for example, that merely because a physically injured person has a
family, every member of that family, or even any member of that family will necessarily suffer a
pathological reaction as a result of the physical injury, although it is reasonable to expect that all
or most members of the family might to varying degrees experience any combination of
unpleasant emotions.7

10.69 Some jurisdictions sought to ensure that there are limits upon
liability in respect of secondary victims: see Civil Law (Wrongs) Act 2002
(ACT) Ch 3 Pt 3.2; Civil Liability Act 2002 (NSW) Pt 3; Civil Liability Act
1936 (SA) ss 33, 53; Civil Liability Act 2002 (Tas) Pt 8; Wrongs Act 1958 (Vic)
ss 73, 74; Civil Liability Act 2002 (WA) Pt 1B. The effect is that only certain
plaintiffs may be awarded damages for mental harm if they were a secondary
victim.

10.70 Wicks v State Rail Authority (NSW) (2010) 241 CLR 60; 267 ALR 23
examined s 30(2) of the Civil Liability Act 2002 (NSW), which states:
The plaintiff is not entitled to recover damages for pure mental harm unless:
(a) the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril, or
(b) the plaintiff is a close member of the family of the victim.

In that case the appellants suffered psychiatric injury due to attending the
scene of a passenger train derailment where passengers had been killed and
injured. The appellants, police officers, attempted to rescue survivors. The
High Court held (at [45]–[52]) that the respondent owed the appellants a
duty of care and that s 30(2)(a) of the Civil Liability Act 2002 (NSW) did not
preclude them from recovering damages. The appellants witnessed the
surviving passengers being injured or put in peril while they were
participating in the rescue.
In King v Philcox (2014) 320 ALR 398, the High Court examined the South
Australian provisions. Section 53(1) of the Civil Liability Act 1936 (SA)
provides:
Damages may only be awarded for mental harm if the injured person—
(a) was physically injured in the accident or was present at the scene of the accident when the
accident occurred; or
(b) is a parent, spouse, domestic partner or child of a person killed, injured or endangered in
the accident.

The respondent’s brother died in a motor vehicle accident due to the

negligence of the appellant. When he heard of the accident, the respondent
realised he had driven past the scene when his brother was trapped in the car
and dying. As a result, the respondent developed a major depressive order.
The High Court held that the appellant owed the respondent a duty of care
not to cause mental harm as under s 33 of the Civil Liability Act 1936 (SA)
and had breached that duty. However, damages could not be awarded as the
respondent was not ‘present at the scene of the accident when the accident
occurred’,

[page 217]
as being in the same locale after the accident did not satisfy this requirement.
Keane J held (at [53]):
Although it may be said that the accident was causally related to the mental harm from which he
suffered, that harm was not the result of direct exposure to the sights and sounds of the accident.
Accordingly, the respondent’s mental harm was, by reason of s 53(1)(a) of the Act, too remote
from the appellant’s negligent driving to be compensable.

The court held that the effect of the provision was to restrict the award of
damages to a parent, spouse, domestic partner of child of the victim, unless
the plaintiff was physically injured in the accident themselves or was at the
scene of the accident, and that to view the aftermath of the accident was
insufficient.

Coherency
10.71 In Tame v New South Wales (2002) 211 CLR 317; 191 ALR 449, the
High Court thought that to recognise a duty of care would interfere with the
coherency of the law. The appellant alleged that a police officer had been
negligent in completing the traffic collision report which caused her
psychiatric injury. Police officers could not properly carry out investigations
if the law imposed a duty to take reasonable care to avoid causing stress to the
subject of the investigation: at [26] per Gleeson CJ, [57] per Gaudron J, [231]
per Gummow and Kirby JJ, [298] per Hayne J. See also Hunter and New
England Local Health District v McKenna; Hunter and New England Local
Health District v Simon (2014) 253 CLR 270; 314 ALR 505 (to recognise a
duty of care would be inconsistent with the duties and responsibilities of the
doctors and hospitals in respect of involuntary detention of mentally ill
persons and the Mental Health Act 1990 (NSW)).
Some members of the court in Tame also were of the opinion that the
proper cause of action was defamation as the claim involved the appellant’s
reputation: at [28] per Gleeson CJ, [58] per Gaudron J, [123] per McHugh J.
To impose a duty of care would therefore infringe upon the law of
defamation.
Pure Psychiatric Injury in an Established Duty
10.72 If the plaintiff and defendant are within an established duty
category, but the claim is for pure psychiatric harm, then the case is treated as
novel as it requires a consideration of whether the scope of the established
duty extends to foreseeable psychiatric injury: see 9.5.
In Woolworths Ltd v Perrins [2015] QCA 207 at [42], it was stated:
While it is trite law to assert that every employer owes to each employee a duty to exercise
reasonable care not to injure that employee, and further to assert that the duty extends as much
to foreseeable risks of psychiatric harm as to physical harm, the content of the duty of care is not
at large but needs to bring into account the contract that existed between the parties.

10.73 The scope of the duty owed by an employer to an employee in

regard to pure psychiatric injury was considered by the High Court in Koehler
v Cerebos (Australia) Ltd (2005) 222 CLR 44; 214 ALR 355. In Koehler, the
plaintiff argued that her psychiatric illness was caused by the defendant
employer’s failure to reduce, in response to her complaints, the excessive
workload stipulated by her contract of employment. While ultimately
agreeing

[page 218]

with the Court of Appeal, that there was no breach of the duty of care,
McHugh, Gummow, Hayne and Heydon JJ also considered that insufficient
attention had been paid in the lower courts to the scope of the duty of care
owed by the defendant to its employee. Their Honours said (at [25]):
Issues about the content of the duty of care were not examined in any detail in the courts below.
It was assumed that the relevant duty of care was sufficiently stated as a duty to take all
reasonable steps to provide a safe system of work without examining what limits there might be
on the kinds of steps required of an employer. Rather, attention was directed only to questions
of breach of duty framed without any limitations that might flow from an examination of the
content of the duty of care. As earlier indicated, the question of reasonable foreseeability is
determinative.
 Their Honours considered that the scope of the duty of care owed to the
plaintiff did not extend to the matters complained of by the plaintiff. This was
because it was not reasonably foreseeable that carrying out the tasks she had
agreed to under the contract of employment could cause the plaintiff to suffer
a psychiatric illness. As their Honours said (at [40]):
For present purposes, it is sufficient to notice that her agreement to undertake the tasks
stipulated (hesitant as that agreement was) runs contrary to the contention that the employer
ought reasonably to have appreciated that the performance of those tasks posed risks to the
appellant’s psychiatric health.

10.74 In Koehler, the High Court also considered that extending the scope
of the defendant’s duty of care, to encompass the prevention of psychiatric
injury, would be in conflict with the need to preserve the coherency of the
law. Given that the plaintiff had voluntarily entered into the contract of
employment with the defendant, their Honours held that to find that a duty
of care was owed would contravene the contractual principle that, subject to
statutory restraints, employers and employees should be free to stipulate the
amount of work which an employee agrees to perform under a contract of
employment: at [31].

10.75 When a claim for pure psychiatric injury arises from an

employment relationship, the court may consider whether the imposition of a
duty of care imposes upon the defendant’s legitimate business interests. In
Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269; 198 ALR
100, an employee of the respondent was crushed to death by a forklift due to
the negligence of the driver of the forklift. The deceased employee’s three
children were later told of the incident and subsequently they and their
mother claimed to have suffered psychiatric injury caused by hearing of the
accident. Gummow and Kirby JJ were the only members of the court to refer
to the business interests of the respondent, stating (at [90]):
… there is no inconsistency between the existence of a duty of care to the appellants and the
legitimate pursuit by the respondent of its business interests [cf Bryan v Maloney (1995) 182
CLR 609 at 623–4; 128 ALR 163 at 169–70; Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR
 606 at [147]]. The respondent’s duty of care to the appellants to exercise reasonable care to avoid
causing them psychiatric injury as a consequence of their father’s death in the course of his
employment would be, at most, co-extensive with the tortious and express or implied
contractual duties that it owed Mr Gifford directly as his employer. The law requires an
employer in the position of the respondent so to order its affairs as to avoid causing injury or
death to its employees.

[page 219]

10.76 The High Court took a similar approach in New South Wales v Fahy
(2007) 232 CLR 486; 236 ALR 406, where Crennan J, for example, stated (at
[249]–[250]):
The criterion of reasonableness sets boundaries in respect of liability for psychiatric injury, and
anchors the boundaries in principle, rather than allowing them to depend on arbitrary and
indefensible distinctions.

A claim in respect of a psychiatric injury which is reasonably foreseeable is limited only by

reference to general considerations: the compatibility of a duty of care with any conflicting
professional responsibilities, whether imposed by statute or contract, and considerations of legal
coherence.

See the judgment of Gummow and Heydon JJ at [54]. See also Sneddon v
Speaker of the Legislative Assembly [2011] NSWSC 508 (plaintiff claimed
damages for psychiatric injury caused by employer’s breach of the non-
delegable duty of care by failing to intervene when plaintiff was bullied,
harassed and victimised at work).

6 Pure Economic Loss

10.77 At common law, there is no doubt that a duty of care will be owed in
the majority of negligence actions causing physical injury to a person or their
property. Similarly, any economic loss suffered as a consequence of that
injury will be compensable as ‘consequential’ economic loss (for example,
hospital expenses and loss of wages). It is much more difficult to establish that
a duty is owed in regard to a loss which is solely economic, and not
consequential upon physical damage. This latter kind of harm or damage is
called ‘pure economic loss’ and it is only in special circumstances that a
common law duty of care will be recognised for this kind of loss. The refusal
of the common law to recognise that a duty of care could be owed (known as
an ‘exclusionary rule’) is based upon policy considerations, including the fear
of indeterminate liability and of unascertainable classes of plaintiffs: Caltex
Oil (Australia) Pty Ltd v The Dredge ‘Willemstad’ (1976) 136 CLR 529; 11
ALR 227.

10.78 The classic case used to illustrate the distinction between

consequential and pure economic loss is Spartan Steel & Alloys Ltd v Martin
& Co (Contractors) Ltd [1973] QB 27. In this case, the defendant’s employees
damaged an electricity cable while digging up a road with a power-driven
excavating shovel. Metal in the plaintiff’s furnace at the time was damaged as
a result of the interruption to the electricity and had to be removed from the
furnace to avoid damage to the lining of the furnace. The plaintiffs claimed
the cost of the damaged metal removed from the furnace, the loss of the profit
from that metal and the loss of profits on the further melts that could not be
carried out while there was no electricity.
The English Court of Appeal held that the defendant was liable for the
physical damage to the metal, and for the loss of profit on its sale because that
loss was consequential upon the physical damage to the metal itself. In regard
to the loss resulting from the inability to conduct further melts, the court held
that this loss was not consequential upon physical damage to the plaintiff’s
property but resulted from damage to the electricity cable, the property of a
third party. This loss was therefore pure economic loss and no duty of care
was owed in regard to this kind of loss.

[page 220]
10.79 Claims in negligence for pure economic loss may be categorised as
follows:
Negligent misrepresentation The first exception to the common law
rule that no duty of care exists in regard to pure economic loss was
recognised by the House of Lords in Hedley Byrne & Co Ltd v Heller &
Partners Ltd [1964] AC 645. In this case, their Lordships were prepared
to recognise a limited exception to the common law exclusionary rule,
and to recognise that a duty could be owed in regard to negligent
misrepresentations causing pure economic loss.8 In Australia, a duty of
care in regard to negligent misrepresentations causing pure economic
loss was recognised in Mutual Life & Citizens Assurance Co Ltd v Evatt
(1968) 122 CLR 556; [1969] ALR 3. As misrepresentation has a
significant amount of case law and includes the tortious action of
deceit and has links with the Australian Consumer Law. This topic is
examined in Chapter 19.
Relational loss In Caltex Oil (Australia) Pty Ltd v The Dredge
‘Willemstad’ (1976) 136 CLR 529; 11 ALR 227, the High Court
recognised a new kind of recoverable pure economic loss: relational
economic loss. A person suffers relational economic loss when their
pure economic loss is caused by damage to the property of a third
party: see 10.81ff.
Negligent provision of services The law recognises that a professional
owes a duty of care to clients to carry out the terms of their retainer:
see 9.102. However, in limited circumstances, a third party to that
relationship may recover for the pure economic loss suffered as a result
of negligent services by a professional: see 10.97ff.
Defective structures In Bryan v Maloney (1995) 182 CLR 609; 128
ALR 163, the High Court classified the loss arising from structural
defects to a subsequent purchaser of a residence as pure economic loss:
see 10.107.
However, like other duty categories, the pure economic loss duty category
continues to evolve and the High Court may recognise additional common
law duties being owed in the future. See Marsh v Baxter (2015) 49 WAR 1 at
[295]–[300] for an overview of the development of the categories of pure
economic loss.

10.80 The scope of the duty in cases of pure economic loss is more limited
than duties owed for physical damage. In Marsh v Baxter (2015) 49 WAR 1 at
[308], it was explained:
There are at least two policy reasons for that difference. They are first, the spectre of
indeterminate liability, whether in terms of time, amount or the class of potential plaintiffs.
Second, the infliction of pure economic loss in some circumstances is an accepted and
acceptable part of a competitive economy. Legitimate pursuit of market share is frequently at the
expense of a competitor. However these two factors alone do not adequately explain the
outcome in all cases.

Relational Loss
10.81 In 1976, the Australian High Court recognised that a person who
causes pure economic loss to another may owe a duty of care to that other
person if the pure economic

[page 221]

loss is causally related to physical damage to the property of a third party:

Caltex Oil (Australia) Pty Ltd v The Dredge ‘Willemstad’ (1976) 136 CLR 529
at 591; 11 ALR 227 at 273–4 (Caltex). Mason J stated:
Now that the recovery of economic damage not consequential upon property damage is
recognized in the case of negligent mis-statements, there is no sound reason for accepting the
traditional rule that only financial loss which is consequential upon property damage can be
recovered. The traditional rule is not only at odds with Hedley Byrne, it is based on an absolute
distinction between property damage and economic damage which is difficult to justify (see
Hedley Byrne [1964] AC at 517 and 538).

The problem is to yield compensation to the individual who suffers financial loss not necessarily
 consequential upon damage to his property when that loss is closely connected with the failure
to take care and yet at the same time to deny compensation “in an indeterminate amount … to
an indeterminate class” (Ultramares Corporation v Touche (1931) 174 NE 441 at 444), in
particular, to a large class of persons whose loss arises because their use of a public utility or
facility has been interrupted.

Caltex
10.82 In Caltex, the defendant was dredging a channel in Botany Bay in
Sydney when it negligently ruptured a pipeline at the bottom of the bay. The
pipeline was owned by Australian Oil Refining Pty Ltd (AOR) and was used
to carry oil between their refinery on one side of Botany Bay and the Caltex
terminal on the other side. Since the pipeline was owned by AOR, the only
property damage Caltex suffered was the small amount of oil lost when the
pipeline was ruptured. The value of the lost oil was insignificant compared to
the financial loss suffered by the plaintiff in having to use trucks to transport
the oil around the bay while the pipeline was being repaired. It was the pure
economic loss of the substitute transport costs which formed the main issue
in Caltex.

10.83 The High Court unanimously held that the plaintiff was owed a duty
of care and entitled to recover damages for its alternate transportation costs.
However, no one approach to when a duty of care is owed for relational loss
emerges from their Honours’ judgments:
Gibbs and Mason JJ required the defendant to have been in a position
to foresee that Caltex, or a specifically foreseen and limited class of
persons, would suffer pure economic loss as a result of the defendant’s
negligent navigation: at CLR 555; ALR 245 per Gibbs J and at CLR 593;
ALR 274 per Mason J.
Jacobs J considered that the question of whether the loss was physical
or economic irrelevant, and allowed recovery because the effect on the
property of Caltex was a foreseeable result: at CLR 604; ALR 284–5.
Stephen J propounded a proximity test, requiring an especially close
 relationship between the tortious act and pure economic loss: at CLR
574–8; ALR 260–3.
Murphy J held that there were no policy reasons why recovery of the
loss should not be allowed: at CLR 606; ALR 286.
Critical to all of the judgments in Caltex, was:
the pure economic loss was reasonably foreseeable; and

[page 222]

the defendant knew of the plaintiff, specifically Caltex, as the sole

member of an ascertained class.

10.84 In these circumstances, there was no possibility of indeterminate

liability and the main policy consideration against recognising a duty in
regard to pure economic loss was not applicable: compare Ball v Consolidated
Rutile Ltd [1991] 1 Qd R 524; Christopher v MV ‘Fiji Gas’ (1983) Aust Torts
Reports ¶81-202.

10.85 Caltex has rarely been successfully applied to find a duty of care. For
example, in Christopher v MV ‘Fiji Gas’, the court held that the plaintiffs were
not known by the defendant as individuals, only as members of an
unascertained class. See also Ball v Consolidated Rutile Ltd where the same
issue prevented a duty of care arising.
However, the decision was confirmed by the High Court in Perre v Apand
Pty Ltd (1999) 198 CLR 180; 164 ALR 606. McHugh J, for example, stated (at
[113]):
The reasoning in Caltex has been rejected by the Supreme Court of Canada … But I think that
the decision was plainly right. The risk of loss to Caltex was reasonably foreseeable; no question
of indeterminate liability arose; the defendant’s freedom of action was not impaired by imposing
a duty because it already owed a duty to the owner of the pipelines; Caltex could not readily
avoid the risk of incurring the relevant expenses; and the defendant “must be taken to have
known that carelessness in those operations, causing injury to the pipelines, would affect Caltex
 in precisely the way it did” (Caltex Oil (Australia) Pty Ltd v The Dredge Willemstad (1976) 136
CLR 529 at 578; 11 ALR 227 at 263 per Stephen J). The only criticism that I have of the
reasoning in Caltex is that it imposed too narrow a test for determining to whom a duty was
owed.

10.86 This particular area of novel duty commonly has as one of its main
concerns, the issue of indeterminacy in terms of whether there is an
ascertainable class as well as whether the defendant’s potential liability is out
of proportion to the negligent act of omission: Caltex at CLR 551–2; ALR
241–2. Since the decision of Caltex, the development of the approach to novel
duties of care has led to a consideration of the defendant’s control, the
vulnerability of the plaintiff and due to the type of activity usually involved in
these claims, whether a duty would conflict with the pursuit of a legitimate
business interest.
Caltex was applied in Fortuna Seafoods Pty Ltd v The Ship ‘Eternal Wind’
[2008] 1 Qd R 429, with the Queensland Court of Appeal holding that the
decision of Caltex needed to be supplemented (at [6]):
Caltex and Perre suggest that the determination of whether a defendant owes a claimant a duty
of care not to cause mere economic loss will depend on a combination of factors including the
reasonable foresight of the likelihood of harm; the defendant’s knowledge or means of
knowledge of an ascertainable, determinate class of persons who are at risk of foreseeable harm;
the claimant’s vulnerability or whether they are unable to protect themselves from the
foreseeable harm; whether the implication of a duty would impair the defendant’s legitimate
pursuit of autonomous commercial interests including the existence of any contracts between
the claimant and defendant; whether the damage flowed from the occurrence of activities within
the defendant’s control; the closeness of the relationship between the parties and the existence of
any other special circumstances justifying compensation [footnotes omitted].

[page 223]

Ascertainable class
10.87 If the negligence primarily affects the plaintiff, they may be
described as a ‘first line’ victim; however, due to the natural ‘ripple effect of
economic loss on the first line victims’, the issue of indeterminate liability is a
very real one: Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606 at
[112] per McHugh J. Therefore it is possible that the class of persons affected
by the negligence may extend beyond the more readily identifiable first line
victims.
Caltex was applied in Fortuna Seafoods Pty Ltd v The Ship ‘Eternal Wind’
[2008] 1 Qd R 429, but supplemented by reference to the decision of Perre v
Apand Pty Ltd.

10.88 In Fortuna Seafoods Pty Ltd, the appellant’s negligence caused a

ship, the Melina T, to sink. The Melina T was part of a fleet owned by Fortuna
Fishing Pty Ltd and the respondent, Fortuna Seafood Pty Ltd, processed and
sold its fish. The two companies were part of a vertically integrated
commercial operation with common directors and shareholders. The trial
judge had found that a duty of care was owed as the appellant had the means
of knowledge that the respondent was a member of an ascertainable
determinate class of persons likely to suffer economic loss if the appellant was
negligent. On appeal, the appellant argued that the judge had erred in
drawing that inference.
A majority of the Queensland Court of Appeal held that a duty of care was
owed. It was held that knowledge of the injured party was satisfied if the
appellant knew, or had the means of knowing, that the respondent was a
member of an ascertainable class of vulnerable persons unable to protect their
interests. McMurdo P stated (at [15]):
… I would not find the existence of a duty of care here unless satisfied that Eternal Wind’s
master or its owner, Ganta, through Ganta’s officers, had the means of knowledge that Fortuna
Seafoods was a member of a determinate ascertainable class of persons or entities who were at
risk of foreseeable economic harm if Eternal Wind acted negligently in colliding with and
sinking Melina T.

10.89 As the evidence was that vertically integrated commercial operations

such as those between the respondent and the owner of the ship were
common in the fishing industry, ‘it could reasonably be inferred from this
evidence that such information was within the means of knowledge of the
master or owner of Eternal Wind’’: at [17]. Further, due to the vertically
integrated commercial operation, the size of the class of potential plaintiffs
was restricted so as to not give rise to concerns of indeterminate liability: at
[17]. As explained by McMurdo P (at [24]):
Fortuna Seafoods’ loss flowed directly from activities within the control of the master of Eternal
Wind: the negligent operation of Eternal Wind resulting in the sinking of Melina T meant that
Fortuna Seafoods could not process its sister company’s catch and suffered economic loss.
Fortuna Seafoods was within the class of those whom McHugh J in Perre called first line victims.

10.90 In Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2003) Aust Torts
Reports ¶81-692, the Victorian Supreme Court held that there was no duty of
care owed in respect of the pure economic loss suffered due to the
interruption of the gas supply due to the defendant’s negligence. The
defendant sold gas to the main supplier of natural gas in

[page 224]

Victoria. Due to damage at one of the defendant’s processing plants, the

supply of gas to domestic and most business users was interrupted for
approximately 12 days. The loss was summarised as:
The diminution in supply and, ultimately, the cessation of the supply of gas, caused considerable
inconvenience to the consumers of gas in this State and also caused loss and damage to a
substantial number.

Business users were deprived of the supply of gas, which meant that plants and equipment had
to be shut down with the result that materials were damaged or destroyed or had to be disposed
of, and plant and equipment was damaged. In addition, businesses suffered losses, including lost
profits, and incurred expenses.

Domestic users suffered the inconvenience of not having hot water for bathing and washing.
They could not use gas fired cooking appliances. Some domestic users purchased electrical
equipment such as kettles, urns, cookers and microwave ovens to overcome the lack of gas.
Some had to dispose of food, which deteriorated to the point of being unfit for human
 consumption. Some experienced damage to gas hot water heaters when the supply was
reconnected.

Some of the stood-down workers suffered loss of income and also suffered the inconvenience of
taking part of their annual leave entitlements at short notice: at [36]–[39].

The issue before the court was ‘Did Esso owe a duty of care to the plaintiffs
and the various group members who were gas customers and to the stood-
down workers who were employed by gas customers not to interrupt the
supply of natural gas, to avoid causing them purely economic loss?’: at [793].
It was held that the economic loss suffered by plaintiffs, the gas customers
and the stood-down workers, was reasonably foreseeable: at [839]. Applying
the ‘neighbour’ test from Donoghue v Stevenson [1932] AC 562, it was held
that the defendant ought to have had within its contemplation as being
closely and directly affected by it acts or omissions, not only the gas
customers, but also workers who were stood down due to closure of
businesses: at [845] and [850]. As to whether there was an ascertainable class
of plaintiffs, the business and domestic gas customers were considered to be
‘first line’ victims. However, the stood-down workers, the ‘second line’
victims of the negligence, were members of an unascertainable class: at [938].
Further, as claims would have to be proven, loss not being dependent upon
the state of the claimant’s mind, the floodgates factor was not a reason to
deny a duty of care to the gas customers: at [954].

Control and vulnerability

10.91 The defendant’s control of the situation that gives rise to the
negligence obviously is relevant to the plaintiff’s vulnerability. Vulnerability
was highlighted as relevant in imposing a duty of care for pure economic loss
in Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606 at [118], McHugh
J stating:
If the plaintiff has taken, or could have taken, steps to protect itself from the defendant’s
conduct and was not induced by the defendant’s conduct from taking such steps, there is no
reason why the law should step in and impose a duty on the defendant to protect the plaintiff
from the risk of pure economic loss.
 [page 225]

In that case it was noted that a defendant who knows the plaintiff as an
individual and that they are reliant upon them, gives rise to vulnerability: at
[10]. See also Barclay v Penberthy (2012) 90 ALJR 610; 291 ALR 608 at [174].

10.92 In Marsh v Baxter (2015) 49 WAR 1, the appellants were certified

organic farmers and the respondent carried on a farming business that
included growing cereal crops and canola. The appellants lost their
certification for growing organic produce after genetically modified canola
was blown onto their property during the respondent’s harvesting process. As
there was no physical damage to the appellant’s crop, the loss was the loss of
certification, the claim was for pure economic loss. A majority of the court
held that there was no duty of care owed. In relation to the vulnerability of
the appellant, the majority held that the appellants could not be described as
vulnerable. The assessment of the appellants’ vulnerability had to take into
account their obligations under the contract with the organisation that
certified their farm as organic. The majority noted (at [684]):
It is not obvious that the appellants would remain at risk of withdrawal of certification … if they
undertook preventative measures, such as the planting of trees for natural screening and the
erection of physical barriers; the carrying out of visual inspections for, and removal of, any GM
plant material, such as swathes, where there was a risk of high winds in the two to three weeks
that swathes were left in windrows; or in undertaking to [National Association of Sustainable
Agriculture (Australia) Ltd] to carry out inspections for, and removal of, any volunteer GM
plants that might subsequently emerge.

Unlike the situation in Perre, the appellants were aware of the respondent’s
genetically modified canola and therefore could appreciate the risk to which
they were exposed: at [691].

10.93 As a plaintiff’s claim based upon relational loss will arise in the
commercial context, are they vulnerable if they could have taken out
insurance to protect against the loss? In Perre, McHugh J held, ‘Whether the
plaintiff has purchased, or is able to purchase, insurance is, however,
generally not relevant to the issue of vulnerability’: at [130]. This was also the
view of Stephen J in Caltex (1976) 136 CLR 529 at 580–1; 11 ALR 227 at 265.
See also Fortuna Seafoods Pty Ltd v The Ship ‘Eternal Wind’ [2008] 1 Qd R
429 at [23]. However, see Gillard J’s view in Johnson Tiles Pty Ltd v Esso
Australia Pty Ltd (2003) Aust Torts Reports ¶81-692 at [1347], where after
reviewing the possible avenues open to the plaintiffs to protect against loss
arising from an interruption to the gas supply, his Honour held that the
availability of insurance was something that the plaintiffs could have taken
advantage of to protect against loss.
In Barclay v Penberthy (2012) 291 ALR 608, the majority did not think that
merely because the plaintiff was a commercial entity led to the conclusion
that it could have negotiated protection against loss through its contract and
was therefore not vulnerable: at [47] and [177].

Interference with ordinary commercial behaviour

10.94 Regard must be had to whether a duty imposed for the relational
loss would impede the defendant’s right to pursue its business interests: Perre
v Apand (1999) 198 CLR 180; 164 ALR 606 at [115]; Caltex (1976) 136 CLR
529 at 578; 11 ALR 227 at 263. In Hardie Finance Corporation Pty Ltd v Ahern
(No 3) [2010] WASC 403 at [366], Pritchard J stated:

[page 226]

… if a person is legitimately protecting or pursuing his or her social or business interests, the
common law will not require that person to be concerned with the effect of their conduct on the
economic interests of others, even when the person knows that their actions will cause loss to a
specific individual …

10.95 In Fortuna Seafoods Pty Ltd v The Ship ‘Eternal Wind’ [2008] 1 Qd R
429, it was examined ‘whether the implication of a duty would impair the
defendant’s legitimate pursuit of autonomous commercial interests including
the existence of any contracts between the claimant and defendant’: at [6]
(footnotes omitted). McMurdo P held that there was no conflict:
The imposition of a duty of care on Eternal Wind not to negligently cause economic loss to
Fortuna Seafoods by colliding with and sinking the Melina T does not impair the appellant’s
pursuit of its autonomous commercial interests. The group to which Fortuna Seafoods belongs
is a relatively small and determinate class of fish processors and marketers closely affiliated
through integrated company structures with owners of fishing vessels. There was no contractual
relationship between the appellant and Fortuna Seafoods: at [22].

10.96 In Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2003) Aust Torts
Reports ¶81-692, it was held that the imposition of a duty would not create
any inconsistency with the defendant’s legitimate pursuit of its economic
interests. The defendant sold its gas to the gas retailer with the intention it
would be on-sold to the consumer. Therefore, imposing a duty of care would
‘not in any way cut across its legitimate business activities or impede them’: at
[964].

Negligent Provision of Services

10.97 It is an established duty of care that professionals must exercise
reasonable care in performing the terms of their retainer when acting for a
client: see 9.106. But what if a party who is not a client is reliant upon the
professional and suffers pure economic loss as a result? In Bryan v Maloney
(1995) 182 CLR 609 at 619; 128 ALR 163 at 166, Mason CJ, Deane and
Gaudron JJ observed:
… commonly, but not necessarily, [a duty will arise in cases which] will involve an identified
element of known reliance (or dependence) or the assumption of responsibility or a
combination of the two.

10.98 If the alleged negligence relates to the giving of advice or

information, an action in negligent misrepresentation may arise: see Chapter
19. However, if the plaintiff relies upon the professional to do their work for
their client competently and suffers the loss, the law may recognise a duty of
care in limited circumstances: Hill (t/as R F Hill & Associates) v Van Erp
(1997) 188 CLR 159; 142 ALR 687 (Hill v Van Erp).

10.99 Traditionally, the common law courts have been reluctant to

recognise extending the scope of a solicitor’s duty to include third parties to
the solicitor–client relationship. The reason for such reluctance is the concern
that there could be a conflict between the interests of the client and those of
the third party: Hill v Van Erp (1997) 188 CLR 159; 142 ALR 687; Hawkins v
Clayton (1988) 164 CLR 539; 78 ALR 69; Ross v Caunters [1980] Ch 297;
[1979] 3 All ER 580. Nevertheless, it has been recognised that a solicitor may
owe a duty of care to a third party if the interests of the client and the third
party coincide (Hill v Van Erp;

[page 227]

Badenach v Calvert (2016) 90 ALJR 610; 331 ALR 48) and recognition of the
duty creates no incoherency in law: Sullivan v Moody (2001) 207 CLR 562;
183 ALR 404.

10.100 In Hill v Van Erp, the plaintiff had been named as a beneficiary in
the will of her friend and neighbour, the late Mrs Currey. The defendant
solicitor had drawn up and supervised the execution of Mrs Currey’s will. The
will was executed at the client’s home and, at the request of the defendant,
was witnessed by the plaintiff’s husband. This meant that, pursuant to s 15(1)
of the Succession Act 1981 (Qld), the gift to the plaintiff was invalid and the
bequest, valued at $163,471.50, went to the residual legatee, the deceased’s
son. The High Court, in a 5:1 decision, found in the plaintiff’s favour, despite
the general rule that professionals only owe a duty to their clients and not to
third parties, even if the third party purports to rely on the professional’s
skills and judgment.
10.101 As to the scope of the duty, in Vagg v McPhee (2013) 85 NSWLR
154 at [52], Tobias JA noted that the High Court did not ‘fully answer the
question of how far the duty extends in relation to instructions given
regarding the assets of an estate’.

Control and vulnerability

10.102 If a professional is providing a service, it may be that they are in a
position of control, but that does not necessarily equate with an assumption
of responsibility: Hill v Van Erp at CLR 198; ALR 716. In Hill v Van Erp, it
was held that the solicitor was in a position of control as to ‘whether Mrs Van
Erp would acquire the right to have Mrs Currey’s estate properly
administered in accordance with the terms of her will’: at CLR 199; ALR 717.

10.103 Any vulnerability on the part of the plaintiff must be assessed as at

the time of the alleged breach. Consideration may be given to the question of
whether the plaintiff would suffer loss if the professional was negligent in the
provision of their service, but also what practical precautions were available
to the plaintiff and if they had the capacity to adopt any of those precautions:
Hill v Van Erp at CLR 186; ALR 707 per Dawson J; at CLR 216; ALR 727 per
McHugh J.
In Hill v Van Erp, it was observed that in respect of the execution of a will,
it was usually the solicitor and client who had access to the will and the client
was not expected to review the will for any defects. Further, any mistake in
the execution of the will could only be discovered after the client’s death and
therefore ‘[i]n this respect the intended beneficiary is particularly vulnerable’:
at CLR 186; ALR 707.

Coherency
10.104 In Hill v Van Erp, Brennan CJ stated (at CLR 167; ALR 691–2):
… generally a solicitor’s duty is owed solely to the client subject to the rules and standards of the
profession (see White v Jones [1995] 2 AC 207 at 223). … But the interests of a client who retains
 a solicitor to carry out the client’s testamentary instructions and the interests of an intended
beneficiary are coincident.

Most testators seek the assistance of a solicitor to make their intentions effective. The very
purpose of a testator’s retaining of a solicitor is to ensure that the testator’s instructions to make
a testamentary gift to a beneficiary result in the beneficiary’s taking that gift on the death of the
testator.

[page 228]

10.105 If the plaintiff’s interests do not coincide with those of the

solicitor’s client, this goes against a duty of care being owed, as would if the
solicitor was obliged to act exclusively in the client’s interests: Hill v Van Erp
at CLR 196–7; ALR 715; Hardie Finance Corporation Pty Ltd v Ahern (No 3)
[2010] WASC 403; Tobin v Dodd [2004] WASCA 288; Talbot and Olivier (a
firm) v Witcombe (2006) 32 WAR 179; Thompson v Canik (1998) 145 FLR
438. See David v David [2009] NSWCA 8, where it was alleged that the
solicitor owed a duty to the appellants as persons who may enter into
contracts with his client. The solicitor never gave advice to the appellants who
signed contracts prepared by him for his client. The court held that no duty of
care was owed to the appellants, stating (at [92]):
In the circumstances here, there was plainly no duty owed to persons not clients of the solicitor
to undertake steps that would have been contrary to the interests of the solicitor’s client. It is
unnecessary to discuss the circumstances in which a solicitor may come under a duty of care in
the effecting of his or her retainer to his or her client to take into account the interests of third
parties. However, save for circumstances of assumption of duty (and leaving to one side
knowledge of fraud), it would be an extraordinary development of the law to impose upon the
solicitor a duty to take some step or give some advice to a third party that was inconsistent with
the interests of his primary client.

In Queensland Art Gallery Board of Trustees v Henderson Trout (a firm)

[2000] QCA 93 at [31], Pincus JA of the Queensland Court of Appeal was of
the opinion that:
If a mistake in arranging for the execution of a Will as in Hill v Van Erp and in Somerville v
Walsh, NSW Court of Appeal CA 40321 of 1997, 26 February 1998, suffices to create a duty of
 care, then I can see no reason why it should be held that a disappointed beneficiary, whose hope
of benefit is evident to the solicitor engaged, should not have a right to sue if that hope fails of
realisation because of the solicitor’s culpable delay in preparing a Will.

In that case the plaintiff alleged that the solicitor had delayed in executing a
new will of their client causing it to lose the intended bequest of their client’s
art collection. The claim failed as the evidence did not establish that the client
had made up her mind about the bequest.
See also Badenach v Calvert (2016) 90 ALJR 610; 331 ALR 48, where the
High Court held that a solicitor did not owe a duty of care to a beneficiary of
a client testator to advise the client testator of their available options to avoid
their estate being subject to a claim under the Testators Family Maintenance
Act 1912 (Tas). The court held that the interests of the testator and
beneficiary were not co-extensive and that the scope of the duty owed by the
solicitor to the beneficiary was narrower. French CJ, Kiefel and Keane JJ
stated (at [47]):
The interests of the client and the respondent as parties to the proposed inter vivos transactions
are not the same as those of a testator and intended beneficiary with respect to the execution of
final testamentary intentions. The advices and warnings which the solicitor would need to give
about such transactions would reflect that their interests are not coincident. … This is not a
circumstance which could arise where a solicitor was merely carrying into effect a testator’s
intentions as stated in his or her final will.

Indeterminacy
10.106 In Hill v Van Erp, indeterminate liability was held not to be an
issue as the terms of the will constrained the liability. In Hardie Finance
Corporation Pty Ltd v Ahern (No 3) [2010] WASC 403, it was alleged that the
solicitor’s negligent advice to

[page 229]

his client had caused the plaintiff to suffer economic loss. The court held (at
[445]) that to impose a duty of care in the circumstances would expose the
solicitor to indeterminate liability:
… solicitors traditionally provide advice on almost all aspects of commercial and corporate
liability, much of which, when acted upon, will affect a wide range of persons including
employees, investors and creditors.

See also Carey v Freehills (2013) 303 ALR 445, where the court noted that
the law is resistant to extend a solicitor’s duty beyond the corporate client to
the shareholders or other related entities. However, the court also pointed out
that it is not impossible, if a duty may be established by a consideration of the
salient features of novel duties: at [323].

Defective Buildings
10.107 A duty of care is owed by a builder to the client in the construction
of a house. Houses get sold and subsequent purchasers are not in any
contractual relationship with the builder. If the building is defective due to
the builder’s negligence and the damage arises when the house is in the
possession of a subsequent purchaser, the law may impose a duty of care
upon the builder. The loss suffered by the subsequent purchaser has been
classified by the High Court as pure economic loss: Sutherland Shire Council v
Heyman (1985) 157 CLR 424 at 505; 60 ALR 1 at 61 per Deane J; Bryan v
Maloney (1995) 182 CLR 609; 128 ALR 163. The reasoning for this
classification is that when the defects manifest after the subsequent purchase
of the property, the purchaser has paid more than what the property was
worth and in some cases the rectification costs will arise in the future.

Bryan v Maloney
10.108 In Bryan v Maloney (1995) 182 CLR 609; 128 ALR 163, the
appellant was a professional builder who built a house for Mrs Manion. The
house was later sold to another party who then sold it to the respondent. Six
months after the respondent purchased the house, cracks appeared in the
walls. The cause of the cracks was the inadequate footings in the building.
Despite the fact that there was no contract between the appellant builder and
the respondent, the appellant was found liable for the diminution in the value
of the property. In coming to its decision, the High Court was concerned with
the control of the builder, the vulnerability of the subsequent purchaser and
the coherency of the law and the relationships between the parties.

10.109 Bryan v Maloney involved the subsequent purchase of a domestic

building. The High Court approved its decision of Bryan v Maloney in
Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; 205
ALR 522, but held that no duty of care was owed to the subsequent purchaser
of defective commercial premises.

Control and vulnerability

10.110 One of the critical factors in the High Court finding in the
respondent’s favour in Bryan v Maloney was the respondent’s inability to
protect her own interests and the appellant’s possession of specialist
knowledge and skills, which meant that, as the builder,

[page 230]

he was in overall control of the house construction. Mason CJ and Deane and
Gaudron JJ commented that policy considerations supported the finding of a
duty owed by the builder to the plaintiff because:
… by virtue of superior knowledge, skill and experience in the construction of houses, it is likely
that a builder will be better qualified and positioned to avoid, evaluate and guard against the
financial risk posed by latent defect in the structure of a house: at CLR 627; ALR 171.

10.111 In contrast, in Woolcock Street Investments Pty Ltd v CDG Pty Ltd
(2004) 216 CLR 515; 205 ALR 522, the High Court found in favour of the
defendant because the plaintiff had the ability and resources to protect its
own commercial interests and was not, therefore, vulnerable.9 In Woolcock
Street Investments, the plaintiff had purchased a commercial property which
subsequently developed structural defects due to either the defendant’s
negligent design of the footings or its negligent supervision over their
construction.
The High Court held by a 6:1 majority that no duty of care was owed to the
defendants. Gleeson CJ, Gummow, Hayne and Heydon JJ considered that:
… the appellant was [not], in any relevant sense, vulnerable to the economic consequences of
any negligence of the respondents in their design of the foundations for the building … It may
be accepted that the appellant bought the building not knowing that the foundations were
inadequate. It is not alleged or agreed, however, that the defects of which complaint now is
made could not have been discovered: at [31]–[32].

Their Honours also considered that vulnerability, in the context of pure

economic loss cases, is not to be understood as meaning that the plaintiff was
likely to suffer damage if reasonable care was not taken by the defendant.
Instead, their Honours considered that vulnerability:
… is to be understood as a reference to the plaintiff’s inability to protect itself from the
consequences of a defendant’s want of reasonable care, either entirely or at least in a way which
would cast the consequences of loss on the defendant: at [23].

McHugh J, also in the majority, somewhat more expansively, considered

that vulnerability means:
… that by reason of ignorance or social, political or economic constraints, the plaintiff was not
able to protect him or herself from the risk of injury: at [80].

10.112 Kirby J, however, was critical of the restricted approach to

vulnerability adopted by the other members of the court. In his Honour’s
opinion, the concept of vulnerability is more complex and should be
determined by all the circumstances of the individual case under
consideration. Moreover, his Honour considered that no assumption should
be made that those involved in a commercial enterprise are able to protect
their own economic interests. In particular, his Honour referred to the case of
Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606 and said (at [168])
that vulnerability could extend to plaintiffs such as those in that case, who:
 … might be carrying on a profitable economic enterprise but who are exposed to an insidious
risk by the acts of others about which they were unaware and against which they could not
reasonably protect themselves.

[page 231]

His Honour went on to say (at [169]):

I accept that the capacity of an entity to protect itself and its interests is an important factor in
determining vulnerability. However, it is not the only one. In a commercial context there may
be many more to be considered — assumption of risk, known reliance and commercial
pressures, to name but a few. With the benefit of hindsight it is easy to suggest that an entity
should have protected itself. However, courts should be reluctant to assume that a commercial
entity lacked vulnerability simply because of its commercial character.

In the present case, he considered the plaintiff was vulnerable because:

… it had no reasonable intermediate opportunity of discovering, and protecting itself against,
the latent defect of which it now complains. That defect was under the ground and beneath the
building. According to the pleadings, it only became known to the appellant when the ‘distress’,
which the defect caused to the building, first began to manifest itself in outward signs: at [173].

Kirby J was in dissent in holding that the plaintiff’s case should not be
dismissed until a court had had an opportunity to consider all the facts
relating to the plaintiff’s vulnerability and not just those agreed upon for the
purposes of the appeal: at [178].
See also Barclay v Penberthy (2012) 291 ALR 608, where the court referred
to Woolcock Street Investments Pty Ltd v CDG Pty Ltd in its discussion of
vulnerability, and Chan v Acres [2015] NSWSC 1885.

10.113 In Project Company No 2 Pty Ltd v Cushway Blackford & Associates

Pty Ltd [2011] QCA 102, both of these High Court cases were discussed as the
court was required to review the law in order to determine whether a party
could be joined to the proceedings. In that case, the appellant contracted with
BLL to build an abattoir and associated facilities in Toowoomba. BLL engaged
the respondent and Harwal (third respondent) as subcontractors. The
respondent supplied the electrical design, inspection and certification services
and Harwal designed and constructed the abattoir’s switchboards. The parent
company purchased all of the shares in the appellant four years later and then
the appellant granted its parent company a licence to operate the abattoir, but
maintained ownership of the plant and equipment. A fire in the main
switchboard caused the abattoir facility to be shut down for five weeks and
the appellant alleged that the respondents were negligent. It became apparent
that it was the parent company that had suffered some of the losses claimed in
the negligence proceedings, not the appellant. The trial judge held that the
principles in Bryan v Maloney did not extend to commercial premises. The
Queensland Court of Appeal noted the differences between the facts of the
case before it and the High Court decisions — ‘the land and improvements
continued throughout in the ownership of [the appellant], the original
contracting party’: at [16]. Further, it was not a structural or design defect in a
building: the alleged negligence was a failure in the switchboard which caused
a fire which then caused the abattoir to cease operation for five weeks,
incurring trading losses.
The respondent argued that the appellant was not vulnerable as the parent
company could have obtained a warranty or an assignment of rights from the
appellant and further, that the appellant’s own expert report demonstrated
that an examination of the electrical drawings and switchboard before the
parent company started to use the

[page 232]

abattoir facilities would have revealed the alleged defects. The court
disagreed, stating (at [19]):
… what is reasonable for parties at arms length in a transaction of sale and purchase may not be
reasonable or even appropriate for dealings between companies in the same group engaged in
quite a different transaction.

Therefore, despite being a company and having the avenue of seeking a

warranty or assignment of rights available to it, as identified in Woolcock
Street Investments Pty Ltd v CDG Pty Ltd, the Court of Appeal held that the
appellant was not necessarily not vulnerable.

10.114 Vulnerability was also an issue in Brookfield Multiplex Ltd v

Owners Corp Strata Plan (2014) 254 CLR 185; 313 ALR 408. The appellant
contracted with a property developer to construct strata-titled serviced
apartments. Under the strata title legislation, upon registration of the plan, a
body corporate comes into existence, the respondent in this case. The
respondent alleged that the construction had been negligent and there were
defects in the common property. In considering whether the respondent was
vulnerable, Hayne and Kiefel JJ stated (at [56]–[57]):
It may be assumed, without deciding, that the developer and the purchaser of a lot from the
developer relied on the builder to do its work properly. The purchaser of a lot could not check
the quality of the builder’s work as it was being done. Perhaps the developer was in no different
position. (That would turn on what meaning is given to the superintendence provisions of the
developer’s contract with the builder.) The [respondent] was in no better position to check the
quality of the builder’s work as it was being done than the original purchaser of a lot. Because
these parties could not check the quality of what the builder was doing, it can easily be said that
each relied on the builder to do its work properly.

Reliance, in the sense just described, may be a necessary element in demonstrating vulnerability,
but it is not a sufficient element. As noted earlier, vulnerability is concerned with a plaintiff’s
inability to protect itself from the defendant’s want of reasonable care, either entirely or at least
in a way which would cast the consequences of loss on the defendant.

The court was unanimous in that the respondent was not vulnerable in the
sense it could not protect itself. French CJ held (at [3]):
The nature and content of the contractual arrangements, including detailed provisions for
dealing with and limiting defects liability, the sophistication of the parties and the relationship
of [the property developer] to the [respondent] all militate against the existence of the asserted
duty of care to either [the property developer] or the [respondent].

See also Chan v Acres [2015] NSWSC 1885.

Coherency
10.115 In Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216
CLR 515; 205 ALR 522 at [102], McHugh J stated:
Law is too complex for it to be a seamless web. But, so far as possible, courts should try to make
its principles and policies coherent (Sullivan v Moody (2001) 207 CLR 562; 183 ALR 404 at
[55]). Accordingly, it is always relevant in determining whether to create, extend

[page 233]

or formulate a duty in tort to consider whether it is consistent with other legal doctrines,
principles and policies.

The High Court held that there was no disconformity between the
obligations owed to the original owner and the subsequent purchaser.
Gleeson CJ, Gummow, Hayne and Heydon JJ referred to Voli v Inglewood
Shire Council (1963) 110 CLR 74 at 85, in which Windeyer J noted that the
contract between the builder and original owner was not irrelevant and stated
that the:
… contract defines the task which the builder or engineer undertook. There would be evident
difficulty in holding that the respondents owed the appellant a duty of care to avoid economic
loss to a subsequent owner if performance of that duty would have required the respondents to
do more or different work than the contract with the original owner required or permitted: at
[28].

See also Brookfield Multiplex Ltd v Owners Corp Strata Plan (2014) 254
CLR 185; 313 ALR 408 at [144], where it was held that to impose a duty to
prevent foreseeable economic loss to a property developer from an obligation
to make good any latent defects in the building, would affect the contractual
allocation of risk as agreed between the parties. To allow the subsequent
purchasers of the building to recover loss from the builder, when the builder
was not liable to the party for whom they constructed the building and
received payment from, ‘would reduce the common law to incoherence’: at
[69] citing Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216
CLR 515; 205 ALR 522 at [28].

Relationships
10.116 Although there is no contractual relationship between the builder
or engineer and a subsequent purchaser, the High Court in Bryan v Maloney
(1995) 182 CLR 609 at 625; 128 ALR 163 at 170–1 pointed out that there was
some connection:
the house was a permanent structure likely to be used indefinitely and
was a significant investment for a purchaser;
a builder would be able to foresee that the negligent construction of a
house with inadequate footings was likely to cause economic loss when
this manifested; and
no intervening act of negligence or other event would occur between
the construction and the economic loss being suffered.
See Fangrove Pty Ltd v Tod Group Holdings Pty Ltd [1999] 2 Qd R 236,
decided before Woolcock Street Investments Pty Ltd v CDG Pty Ltd, where the
Queensland Court of Appeal held that ‘[t]he purchaser of a substantial
commercial building acquired for profit does not fit the description of a
purchaser of a modest suburban house who “is likely to be unskilled in
building matters and inexperienced in the niceties of real property
investment”’: at [36], citing Bryan v Maloney at CLR 627; ALR 171.

10.117 Recognising a duty of care in respect of defective structures does

not require a consideration of whether a duty would conflict with a
defendant’s right to pursue its legitimate business interests: Woolcock Street
Investments Pty Ltd v CDG Pty Ltd at [79]; Bryan v Maloney at CLR 623–4;
ALR 169–70.

[page 234]

Indeterminacy
10.118 Although indeterminate liability was considered in Bryan v
Maloney and Woolcock Street Investments Pty Ltd v CDG Pty Ltd, in neither
case did it negate a duty of care possibly being owed in the circumstances. In
Woolcock Street Investments Pty Ltd v CDG Pty Ltd at [77], McHugh J held:
Indeterminacy of liability is a factor that will ordinarily defeat a claim that the defendant owed a
duty of care to persons such as the plaintiff. But it is not likely to be a significant issue in cases
concerned with economic loss suffered by the subsequent purchaser of a commercial building
that is or becomes defective by reason of negligent design or construction. Liability will
ordinarily be restricted to the owner of the building when damage manifests itself.
Indeterminacy of liability may be a relevant factor where occupants of the building claim
damages for economic loss arising out of the defective design or construction of the building.
But when the first owner or a subsequent purchaser of a commercial building claims damages
for pure economic loss, indeterminacy of liability is not an issue.

A defendant would only be liable for the diminution of the value of the
property or the cost of rectification to the owner as at the time the damage
manifests.
See also Brookfield Multiplex Ltd v Owners Corp Strata Plan (2014) 254
CLR 185; 313 ALR 408 at [175]; Project Company No 2 Pty Ltd v Cushway
Blackford & Associates Pty Ltd [2011] QCA 102 at [23].

Legislation
10.119 There is legislation in all Australian jurisdictions that imposes
liability for defective structures upon the builder for a specified period by
implying warranties. For example, in Victoria, Pt 2, Div 1 of the Domestic
Building Contracts Act 1995 provides that if there is defective building work
and an owner notifies the builder within 10 years of the Certificate of
Occupancy or the Certificate of Final Inspection, the builder will be liable.
See also Building Act 2004 (ACT) Pt 6; Home Building Act 1989 (NSW) Pt
2C; Queensland and Construction Commission Act 1991 (Qld) s 67AZN, Sch
1B; Building Work Contractors Act 1995 (SA) s 32; Housing Indemnity Act
1992 (Tas) s 8.

7 Liability of Public Authorities

10.120 A public, or statutory, authority is a legal body created by
parliament to act on behalf of the executive branch of the government.10
Examples of public authorities usually include city, municipal and local
councils, fire, police, health and similar government departments and road,
rail and transport authorities. Each of these public authorities has its
responsibilities, functions and powers specified and regulated by the Act of
parliament which resulted in its creation. Under the Westminster separation
of powers doctrine (between the executive, judicial and parliamentary
branches of government), negligent policy decisions

[page 235]

made by public authorities are excluded from judicial review or consideration

by the Australian courts: see 10.135.

10.121 The relationship between the plaintiff and the public authority may
fall within one of the established duty categories. As noted by McHugh in
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; 167
ALR 1 at [61]:
The correct approach in determining whether a statutory authority owes a duty of care is to
commence by ascertaining whether the case comes within a factual category where duties of care
have or have not been held to arise. Employer and employee, driver and passenger, carrier and
consignee are a few examples of the many categories or relationships where, absent statute or
contract to the contrary, the courts have held that one person always owes a duty of care to
another. Frequently, a statutory authority will owe a duty of care because the facts of the case fall
within one of these categories. The authority may, for example, be an employer or occupier of
premises or be responsible for the acts of its employees, such as driving on a public street.

10.122 If the relationship is not within one of the established duties, public
authorities as defendants give rise to difficulties as the action in negligence
will be based upon the authorities’ allegedly negligent exercise of power or a
failure to exercise power. Mason J in Sutherland Shire Council v Heyman
(1985) 157 CLR 424 at 457–8; 60 ALR 1 at 26 stated:
 … statutory powers are not in general mere powers which the authority has an option to
exercise or not according to its unfettered choice. They are powers conferred for the purpose of
attaining the statutory objects, sometimes generating a public expectation having regard to the
purpose for which they are granted that they will be exercised. There is, accordingly, no reason
why a public authority should not be subject to a common law duty of care in appropriate
circumstances in relation to performing, or failing to perform, its functions, except in so far as
its policy-making and, perhaps, its discretionary decisions are concerned.

10.123 This category of novel duties has been flagged as difficult, as Kirby
J observed in Pyrenees Shire Council v Day (1998) 192 CLR 330; 151 ALR 147
at [189]:
This field of the law of negligence has been acknowledged to be among the most difficult, both
by judges and scholars. An optimistic view is that the difficulty arises because the law is
“developing”. A more realistic perspective may be that it is a category which is conceptually
unsettled. The fundamental problem is that a single unifying principle for liability in negligence,
easy to apply and predictable in outcome, has proved elusive. Differing theories hold the legal
stage for a time. But then their defects and inadequacies are exposed. None has won permanent
acceptance. The best that observers of this branch of the common law have been able to offer is
the cautionary advice to study the cases in the hope of deriving guidance from analogies.
However, in order to do this it is necessary to have some concept of the principle by which the
analogy is to be discovered. [footnotes omitted]

See also Amaca Pty Ltd v New South Wales (2004) Aust Torts Reports ¶81-
749 at [19]:
A clear and universal test for determining whether a duty of care arises has not been laid down.
Each case depends on its own circumstances and the totality of the circumstances must be
weighed in the balance.

10.124 In this section, the discussion of whether a public authority owes a

common law duty of care will generally be limited to actions involving
personal, psychiatric and property

[page 236]

damage. For a discussion of whether a duty is owed where the harm is pure
economic loss (see 10.81ff) and for loss arising from misrepresentation, see
Chapter 19.

10.125 Some legislation exempts public authorities from liability in

negligence. For example, s 142(3) of the Nature Conservation Act 1992 (Qld)
provides that the State is not liable for any act or omission related to the
performance of a function under the Act in relation to a state protected area.
‘State protected area’ is defined to be a national park or a regional park: s
142(7).

Statutory Power
10.126 A duty of care is not owed by a public authority merely because it
has the powers that if exercised may prevent the harm suffered by the
plaintiff: Pyrenees Shire Council v Day (1998) 192 CLR 330; 151 ALR 147.
Neither will a duty to be owed solely because it is reasonably foreseeable that
if the power is not exercised by the public authority that harm may arise:
Stuart v Kirkland-Veenstra (2009) 237 CLR 215; 254 ALR 432. However, it is
a well-established principle that if an authority does exercise its powers, they
must be exercised with reasonable care: Caledonian Colleries Ltd v Speirs
(1957) 97 CLR 202 at 220; Stuart v Kirkland-Veenstra at [117]; Precision
Products (NSW) Pty Ltd v Hawkesbury City Council (2008) 74 NSWLR 102 at
[75].

10.127 Before a duty of care can be established, it must be identified as to

which category the alleged negligence falls. A plaintiff may suffer loss because
a public authority:
exercised its power negligently (misfeasance);
had the power to act but did not exercise the power (nonfeasance); or
had no duty to act (pure nonfeasance).
In cases of misfeasance, that is, the public authority has exercised its power;
the law requires that reasonable care be taken. It is the latter two situations
that require analysis of the legislation to determine whether or not there was a
duty to act. See, for example, Pyrenees Shire Council v Day (1998) 192 CLR
330; 151 ALR 147 (failure to exercise discretion); Sutherland Shire Council v
Heyman (1985) 157 CLR 424; 60 ALR 1 (no duty to act).

10.128 Generally, the common law does not impose upon a defendant a
duty to act to prevent harm to another, unless it is the defendant’s act which
created the risk: Smith v Leurs (1945) 70 CLR 256; [1945] ALR 392; Pyrenees
Shire Council v Day (1998) 192 CLR 330; 151 ALR 147. However,
circumstances may arise where an authority may be required to act:
(i) Where an authority, in the exercise of its functions, has created a danger.
(ii) Where the particular circumstances of an authority’s occupation of premises or its
ownership or control of a structure attracts to it a duty of care. In these cases the
statute facilitates the existence of a duty of care.
(iii) Where a public authority acts so that others rely on it to take care for their safety:
Amaca Pty Ltd v New South Wales (2004) Aust Torts Reports ¶81-749 at [22],
referring to Sutherland Shire Council v Heyman (1985) 157 CLR 424; 60 ALR 1.

10.129 Whether a public authority had a duty to act was considered in

Stuart v Kirkland-Veenstra (2009) 237 CLR 215; 254 ALR 432. The High
Court had to consider

[page 237]

whether police officers owed a duty of care to a member of the public who
committed suicide several hours after the police officers failed to exercise
their powers under s 10 of the Mental Health Act 1986 (Vic) to take him into
custody for his own wellbeing. The action was brought by the victim’s widow
who suffered a psychiatric injury as a result of her husband’s suicide. Two
police officers had come across the respondent’s husband in the early hours
of the morning as he sat in his car at a public car park writing a letter. There
was a corrugated tube taped to the exhaust pipe extending into the car. The
evidence was that the car’s engine was not running and was cold. When
questioned, Veenstra told the officers that he had thought about doing
something stupid but had changed his mind before they had arrived. The
officers offered to phone his wife, family or a doctor or to drive him home.
After further inquiries were made, the officers allowed Veenstra to leave. The
patrol duty sheet noted that Veenstra had been writing a letter and
contemplating suicide, that he had no psychiatric history but included the
word ‘depressed’ without elaboration. Later that day Veenstra committed
suicide sitting in his car at home.
Section 10(1) of the Mental Health Act 1986 (Vic) empowered a member of
the police force to apprehend a person who appeared to be mentally ill if the
member had reasonable grounds for believing that the person was likely to
attempt suicide. The High Court held that a person was not mentally ill
because they had contemplated suicide: at [97] per Gummow, Hayne and
Heydon JJ. Section 10(1) was interpreted by the court as not imposing an
obligation upon police officers to apprehend mentally ill persons. As the
conditions necessary for the provision did not arise, no duty of care could be
argued based on the failure to exercise the statutory power: at [149] per
Crennan and Kiefel JJ. See also Pyrenees Shire Council v Day (1998) 192 CLR
330 at 346; 151 ALR 147 at 156: ‘if a decision not to exercise a statutory power
is a rational decision, there can be no duty imposed by the common law to
exercise the power’.

10.130 See also Kudrin v City of Mandurah [2012] WASCA 65, where the
respondent had a general power to enable it to enforce compliance by owners
and builders with the approved plans for the construction or alteration of a
building. The appellants alleged that the respondent had failed to exercise this
power, contained in s 401 of the Local Government (Miscellaneous
Provisions) Act 1960 (WA), in relation to an encroaching retaining wall on
property adjacent to theirs. The court held (at [43]) there was no duty owed
by the respondent:
 The statutory regime could not, in my opinion, be said to create or facilitate any relationship
between the respondent and the appellants which was arguably capable of giving rise to such a
duty of care. The power under s 401 … is not a power which is specifically addressed to the
protection of neighbouring or nearby landowners from encroachment, or from inconvenience
or distressed feelings, as a result of building work, but to the maintenance of appropriate
building standards. Nor is it a power which the respondent is under an obligation to exercise in
any case where a non-compliant building may lead to some encroachment or cause some
inconvenience to nearby landowners. The power is a discretionary one and any such obligation
would be inconsistent with the discretionary nature of the power. There was nothing in this case
which called for the power to be exercised to protect the appellants from the risks of which they
complain.

[page 238]

Relevant Factors
10.131 Whether a public authority owes a novel duty will depend upon
the reasonable foreseeability of the harm (Sydney Water Corporation v
Turano (2009) 260 ALR 20), a range of factors as identified in Sullivan v
Moody (2001) 207 CLR 562; 183 ALR 404 and in some jurisdictions,
provisions of the civil liability legislation. For example, in Queensland, s 35 of
the Civil Liability Act 2003 provides:
The following principles apply to a proceeding in deciding whether a public or other authority
has a duty or has breached a duty —
(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 the functions;
(b) the general allocation of financial or other resources by the authority is not open to
challenge;
(c) the functions required to be exercised by the authority are to be decided by
reference to the broad range of its activities (and not merely by reference to the
matter to which the proceeding relates);
(d) the authority may rely on evidence of its compliance with its general procedures
and any applicable standards for the exercise of its functions as evidence of the
proper exercise of its functions in the matter to which the proceeding relates.

See also Civil Law (Wrongs) Act 2002 (ACT) s 110; Civil Liability Act 2002
(NSW) s 42; Civil Liability Act 2002 (Tas) s 38; Wrongs Act 1958 (Vic) s 83;
Civil Liability Act 2002 (WA) s 5W. There are no equivalents in South
Australia and the Northern Territory.

10.132 Significantly, the respective sections refer to both the existence and
breach of the duty of care, reflecting perhaps the difficulties the courts
sometimes face in drawing the dividing line between the nature and scope of
the duty of care and the breach of that duty: Leichhardt Municipal Council v
Montgomery (2007) 230 CLR 22; 233 ALR 200 at [8] per Gleeson CJ.

10.133 In reading this legislation, it should be noted that in some

jurisdictions the use of the term ‘function’ is defined to include what is
usually referred to as a statutory power at common law: see, for example, s 34
of the Civil Liability Act 2003 (Qld). As well as the obvious exceptions of
South Australia and the Northern Territory, only the Western Australian
legislation does not contain this alternate meaning of ‘function’.

10.134 It is also important to note, however, that these statutory

provisions do not represent a codification of the law relating to the liability of
authorities in the tort of negligence. Instead, the statutory provisions will, as
relevant, modify the application of the common law principles, rules and
policies. See Roads and Traffic Authority of New South Wales v Refrigerated
Roadways Pty Ltd (2009) 77 NSWLR 360 at [388].

Policy and operational decisions

10.135 Strict budgetary restrictions are placed upon statutory authorities,
due to the fact that they are directly dependent upon the financial (and
indirectly, the electoral) support

[page 239]
of the Australian taxpayer and ratepayer. For this reason, statutory authorities
often have a discretion as to the ways in which they can carry, or not carry
out, their statutory functions and powers. It is for this reason also that the
High Court has stressed, on several occasions, that statutory authorities are
not insurers for members of the public, so that persons injured by the
negligent act or omission of a statutory authority may, nevertheless, be owed
no duty of care: Brodie v Singleton Shire Council; Ghantous v Hawkesbury
Shire Council (2001) 206 CLR 512; 180 ALR 145; Roads and Traffic Authority
of New South Wales v Dederer (2007) 234 CLR 330; 238 ALR 761; Leichhardt
Municipal Council v Montgomery (2007) 230 CLR 22; 233 ALR 200.

10.136 Mason J in Sutherland Shire Council v Heyman (1985) 157 CLR

424 at 468–9; 60 ALR 1 at 34–5, explained the distinction between policy and
operational decisions:
The distinction between policy and operational factors is not easy to formulate, but the dividing
line between them will be observed if we recognise that a statutory authority is under no duty of
care in relation to decisions which involve or are dictated by financial, economic, social or
political factors or constraints. Thus, budgetary allocations and the constraints which they entail
in terms of allocation of resources cannot be made the subject of a duty of care. But it may be
otherwise when the courts are called upon to apply a standard of care to action or inaction that
is merely the product of administrative direction, expert or professional opinion, technical
standards or general standards of reasonableness.

10.137 In Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540;
196 ALR 337, the plaintiffs ate contaminated oysters and brought a
negligence action against the Great Lakes Council, which had control of the
area where the oyster beds were grown, and the state of New South Wales,
which had decided to allow the oyster industry to be self-regulating. The High
Court held that neither statutory authority owed a duty of care to the
consumers of the contaminated oysters.11 In regard to the Council, its control
and legislative powers over the area where the contamination most likely
originated were insufficient to support a private duty of care being owed by
the authority to the plaintiffs. The state of New South Wales was also held to
have owed no duty of care to the consumer plaintiffs. This finding was based
upon the fact that, ultimately, it is a matter of governmental choice as to how
a particular industry should be regulated. As Gummow and Hayne JJ
commented (at [175]–[176]):
In particular, the state decided not to adopt the approach of some other Australian and foreign
jurisdictions which require regular sanitary surveys of oyster-growing regions pursuant to a
classification structure based on water pollution levels. This decision was reached after much
consideration and was based in part on budgetary concerns … A decision of that nature involves
a fundamental governmental choice as to the nature and extent of regulation of a particular
industry.

The decision as to the nature of the regulation of the oyster industry was a
policy decision and, therefore, not reviewable by the courts. In contrast, in
Pyrenees Shire Council v Day (1998) 192 CLR 330; 151 ALR 147, the failure of
the authority to ensure that the fire defect

[page 240]

had been repaired was an operational decision and could, therefore, be

reviewed by the courts to find that a duty of care was owed and breached.

10.138 The civil liability legislation provides that ‘the general allocation of
financial or other resources by the authority is not open to challenge’: Civil
Law (Wrongs) Act 2002 (ACT) s 110(b); Civil Liability Act 2002 (NSW) s
42(b); Civil Liability Act 2003 (Qld) s 35(b); Civil Liability Act 2002 (Tas) s
38(b); Civil Liability Act 2002 (WA) s 5W(b). There is no equivalent
paragraph in the Victorian legislation.
In Roads and Traffic Authority of New South Wales v Refrigerated
Roadways Pty Ltd (2009) 77 NSWLR 360 at [397], a case considering the
provision from the aspect of breach, it was stated:
There is an important difference in prepositions between s 42(a) and s 42(b). Section 42(a) is
concerned with the resources reasonably available to the authority, while s 42(b) is concerned
with the allocation of those resources by the authority. In other words, s 42(b) starts from the
 position that certain resources are reasonably available to the authority, and considers the
allocation that is made by the authority of those resources.

See also New South Wales v Ball (2007) 69 NSWLR 463 at [13]–[18], where
the plaintiff’s challenge to the allocation of resources was struck from the
statement of claim. The plaintiff was a police officer and claimed that as a
result of the lack of funding and staff he was required to work by himself for
longer hours on child sexual abuse cases causing him to suffer psychiatric
injury.

Control and vulnerability

10.139 The most important of the factors usually relevant to finding
whether a duty of care is owed by a statutory authority, is its control over the
source of the risk of harm and the vulnerability of those who depend upon
the authority to manage (or to warn of) their exposure to that risk. As
Gummow and Hayne JJ commented in Graham Barclay Oysters Pty Ltd v
Ryan (2002) 211 CLR 540; 196 ALR 337 at [149]–[150]:
An evaluation of whether a relationship between a statutory authority and a class of persons
imports a common law duty of care is necessarily a multi-faceted inquiry. Each of the salient
features of the relationship must be considered. The focus of analysis is the relevant legislation
and the positions occupied by the parties on the facts as found at trial. It ordinarily will be
necessary to consider the degree and nature of control exercised by the authority over the risk of
harm that eventuated; the degree of vulnerability of those who depend on the proper exercise by
the authority of its powers; and the consistency or otherwise of the asserted duty of care with the
terms, scope and purpose of the relevant statute. In particular categories of cases, some features
will be of increased significance. For example, in cases of negligent misstatement, such as Tepko
Pty Ltd v Water Board [(2001) 206 CLR 1; 178 ALR 634], reasonable reliance by the plaintiff on
the defendant authority ordinarily will be a significant factor in ascertaining any relevant duty of
care.

The factor of control is of fundamental importance in discerning a common law duty of care on
the part of a public authority. It assumes particular significance in this appeal. This is because a
form of control over the relevant risk of harm, which, as exemplified by Agar v Hyde [(2000) 201
CLR 552; 173 ALR 665], is remote, in a legal and practical sense, does not suffice to found a duty
of care. [footnotes omitted]

10.140 The decision of the High Court in Crimmins v Stevedoring Industry

Finance Committee (1999) 200 CLR 1; 167 ALR 1 (Crimmins) illustrates the
application of the common law factors of control and vulnerability to cases
deciding whether a private, as

[page 241]

well as a public, duty was owed in the circumstances in which the plaintiff
suffered personal injury to their person or property.
In Crimmins, the plaintiff contracted mesothelioma from exposure to
asbestos while working for various stevedoring companies, loading and
unloading ships. The High Court held that the defendant owed the plaintiff a
duty of care on the basis that its predecessor authority had had overall control
of the activities on the wharves where the plaintiff worked. The fact that the
defendant’s predecessor was not the employer of the plaintiff was held to be
irrelevant in the circumstances of the case. The critical factor was the
plaintiff’s vulnerability when compared with the defendant’s knowledge of
the risk and its powers to control or minimise that risk.

10.141 In Stuart v Kirkland-Veenstra (2009) 237 CLR 215; 254 ALR 432 at
[114], the High Court held that control was of ‘critical significance’. The court
stated (at [116]):
No doubt it can also be said that they were in a position to control or minimise the occurrence
of the observed risk (in this case because they had the power given by s 10 of the Mental Health
Act). But considerations of the same kind will almost always be present when a passer-by
observes a person in danger. The passer-by can see there is danger; the passer-by can almost
always do something that would reduce the risk of harm. Yet there is no general duty to rescue.

The case was different from Crimmins, as the police officers were not in
control of the risk, nor did they ‘put Mr Veenstra in harm’s way’: at [116].
See also Pyrenees Shire Council v Day (1998) 192 CLR 330; 151 ALR 147
(the authority had control because of its actual knowledge of the risk and the
fact it had the powers which if exercised would have prevented the risk
materialising); and Sydney Water Corporation v Turano (2009) 239 CLR 51;
260 ALR 20 (water authority had no control over the removal of the tree
which caused the death of the respondent’s husband).

10.142 Vulnerability of the plaintiff is relevant if there was nothing they

could do to protect themselves against the harm. In Precision Products (NSW)
Pty Ltd v Hawkesbury City Council (2008) 74 NSWLR 102, the appellant
argued that it was vulnerable as it had no ‘real opportunity’ to protect itself
when served with a notice under s 91 of the Protection of the Environment
Operations Act 1997 (NSW) requiring clean-up of pollution incidents within
a specified time. The Court of Appeal agreed with the trial judge’s assessment
that the appellant was not vulnerable merely because the exercise of the
power would cause economic detriment to the appellant. The appellant could
have protected itself by taking legal advice upon being served with the notice,
or challenged the notice as it appeared to be invalid on its face: at [110]. See
also Dansar Pty Ltd v Bryon Shire Council (2014) 89 NSWLR 1 at [180].

Coherency
10.143 A statutory authority’s public responsibilities, functions and
powers must be reconciled with the private legal rights recognised by the
existence, nature and scope of the private common law duty of care in a
negligence action. If a conflict or potential incoherency will result from the
recognition of a duty of care, then no duty of care will be recognised by the
common law courts. In Sullivan v Moody (2001) 207 CLR 562; 183 ALR 404
(see 10.28), no duty of care was owed to the plaintiff father because it could
have been in conflict with the defendant’s statutory responsibilities under the
Act for the protection of children.

[page 242]

10.144 In Stuart v Kirkland-Veenstra (2009) 237 CLR 215; 254 ALR 432,
the High Court held that to recognise a duty of care in respect of the police
officers failing to take Veenstra into protective custody would be to recognise
a duty to rescue, which is not part of Australian law. Gummow, Hayne and
Heydon JJ stated (at [99]):
The duty which is postulated in the present case is expressed in terms which, on their face,
would require every person who knows (perhaps every person who ought to know) that another
is threatening self-harm to take reasonable steps to prevent that harm. Presumably, performance
of a duty described in those terms would require the person, in an appropriate case, to exercise
the power given by s 463B of the Victorian Crimes Act (or equivalent provisions) and use
reasonable force to prevent the commission of suicide or “of any act which he believes on
reasonable grounds would, if committed, amount to suicide”. Presumably it is a duty which
would require the person to call for police so that they could exercise powers under s 10. And all
this regardless of whether the person threatening self-harm is in fact mentally ill, or appears to
be so. So expressed the duty would be a particular species of a general duty to rescue. The
common law of Australia has not recognised, and should not now recognise, such a general duty
of care.

Further, the duty would infringe upon an individual’s autonomy, ‘an

underlying value of the common law’: at [87].

10.145 To impose a duty to avoid the economic loss suffered by the

appellant in Precision Products (NSW) Pty Ltd v Hawkesbury City Council
(2008) 74 NSWLR 102 was considered to be in conflict with the purpose of
the Protection of the Environment Operations Act 1997 (NSW) as well as a
lack of coherence with administrative law, as the claim amounted in
substance to an ‘assertion of a compensatory claim for administrative error’:
at [118]. Allsop P held (at [114]):
The imposition of a duty of care to have regard to the economic interests of a person in the
position of the appellant in the way proposed would be to subject the Council, whose
responsibility is to exercise the power in the public interest, to a duty to have regard to the
conflicting interests and claims of the party whose conduct (on this hypothesis) may have
endangered the environment and the public interest. The setting up of this tension between the
statute and the common law should not be permitted: Sullivan v Moody [(2001) 207 CLR 562]
(at 582).

See also New South Wales v Fahy (2007) 232 CLR 486; 236 ALR 406 at [26].
Road Authorities
10.146 Historically a public authority acting as a road authority incurred
no liability in negligence for loss arising from its nonfeasance: Buckle v
Bayswater Road Board (1936) 57 CLR 259; Gorringe v Transport Commission
(Tas) (1950) 80 CLR 357. This traditional immunity for nonfeasance provided
that no liability attached to the road authority simply because it failed to
inspect, maintain or repair defects in a road or highway.

10.147 The High Court in Brodie v Singleton Shire Council; Ghantous v

Hawkesbury Shire Council (2001) 206 CLR 512; 180 ALR 145 (Brodie) by a 4:3
majority held that the ‘highway immunity for nonfeasance rule’ should be
replaced by the same general principles of negligence which govern all other
statutory authorities.

10.148 The decision in Brodie attracted much criticism and, in particular,

concerns that the abolition of the highway rule would lead to a flood of claims
against roads authorities

[page 243]

and councils. When these concerns were to some extent realised, even though
few were successful, several jurisdictions partially reinstated the highway
nonfeasance rule in the civil liability legislation. For example, s 37 of the Civil
Liability Act 2003 (Qld) provides:
Restriction on liability of public or other authorities with functions of road authorities
(1) A public or other authority is not liable in any legal proceeding for any failure by the
authority in relation to any function it has as a road authority —
(a) to repair a road or to keep a road in repair; or
(b) to inspect a road for the purpose of deciding the need to repair the road or to
keep the road in repair.
(2) Subsection (1) does not apply if at the time of the alleged failure the authority had
 actual knowledge of the particular risk the materialisation of which resulted in the
harm.
(3) … [meaning of the term roads authority]

See also Civil Law (Wrongs) Act 2002 (ACT) s 113; Civil Liability Act 2002
(NSW) s 45; Civil Liability Act 1936 (SA) s 42; Civil Liability Act 2002 (Tas) s
42; Road Management Act 2004 (Vic) s 102; Civil Liability Act 2002 (WA) s
52.

10.149 Therefore, under the civil liability legislation, a road authority will
not be liable if the loss arose from a failure on its part to inspect or repair a
road, unless it has ‘actual knowledge of the particular risk the materialisation
of which has resulted in the harm’. If the road authority does have actual
knowledge, no immunity applies and instead an action in negligence as
determined by the usual principles in respect of public authorities will apply.

10.150 The meaning of the term ‘actual knowledge’ has been considered
by courts in New South Wales. In North Sydney Council v Roman (2007) 69
NSWLR 240, the respondent was injured when she fell due to a large hole in
the road. At trial the respondent argued that the road authority could not
claim immunity under s 45 of the Civil Liability Act 2002 (NSW) as it had
actual knowledge of the hole. It was claimed that street sweepers worked
regularly on the road and therefore it could be inferred that the appellant had
actual knowledge as a part of their job was to report hazards. In a 2:1 majority
decision, Basten JA, with whom Bryson JA agreed, held that the street
cleaners’ knowledge of the pothole was not sufficient to constitute the
necessary ‘actual knowledge’ necessary to negate the immunity. Basten JA
held (at [156]–[157]):
… actual knowledge must be found in the mind of an officer within the council having
delegated (or statutory) authority to carry out the necessary repairs.

This conclusion is consistent with the language of s 45(1). The section confers an immunity on a
roads authority where harm arises “from a failure of the authority to carry out road work”. The
exception only arises where “at the time of the alleged failure” the authority had actual
knowledge of the particular risk. A purposive construction would require that the relevant
 knowledge exist in an officer responsible for exercising the power of the authority to mitigate
the harm. The existence of the power is only coupled with a duty to act in circumstances where
such knowledge exists. Accordingly, the knowledge must exist at or above the level of the officer
responsible for undertaking necessary repairs. The knowledge of others without such
responsibility will not, relevantly for the purposes of the provision, constitute “actual
knowledge” of the roads authority

[page 244]

itself; at best it could give rise to “constructive” or imputed knowledge. The use of the term
“actual” precludes reliance on constructive or imputed knowledge. It follows that, even if a street
sweeper having a duty to note and report defects, was aware of the pothole, the immunity is
engaged absent proof on the balance of probabilities that the officer in charge of maintenance
works received that information.

See also Roads and Traffic Authority (NSW) v Rolfe [2010] NSWSC 714 at
[53] (engineer and district maintenance manager was ‘not a street sweeper’
but ‘the relevant decision maker’); Blacktown City Council v Hocking (2008)
Aust Torts Reports ¶81-956; Angel v Hawkesbury City Council (2008) Aust
Torts Reports ¶81-955.
See Nightingale v Blacktown City Council [2015] NSWCA 423 where the
majority of the New South Wales Court of Appeal held that as the decision of
North Sydney Council v Roman (2007) 69 NSWLR 240 was ‘not plainly
wrong’, the court would not depart from the decision: at [62], referring to
Gett v Tabet (2009) 254 ALR 504. However, Simpson JA held that the
decision was ‘plainly wrong’ as the omission by the legislature to specify who
was to have the actual knowledge must have been deliberate: at [101]–[104].
It is predicted that at some point the interpretation of this term will be
considered by the High Court.

10.151 In Collins v Clarence Valley Council [2015] NSWCA 263, the

appellant was injured when her bicycle got stuck between the wooden planks
of a bridge that was in the care, control and management of the respondent.
The court held that that as the respondent did not have ‘actual knowledge’; of
the ‘particular risk’, that is, the particular hole which the appellant’s bicycle
struck, it did not have actual knowledge. To have knowledge of the general
condition of the bridge was not sufficient to negate the immunity. See also
Botany Bay City Council v Latham (2013) 197 LGERA 211.

Further Reading
M Aronson, ‘Government Liability in Negligence’ (2008) 32 MULR 44.
R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis
Butterworths, Sydney, 2013, Ch 7.
D Butler, ‘An Assessment of Competing Policy Considerations in
Cases of Psychiatric Injury Resulting from Negligence’ (2002) 10 TLJ
13.
B Codd, R D Hinchy and V Nase, ‘An Alternative View of Woolcock
Street Investments v CDG Pty Ltd’ (2004) 12 TLJ 194.
M Kirby, ‘Judicial Activism? A Riposte to the Counter-Reformation’
(2004) 24 Aust Bar Rev 219.
—, ‘Ten Years in the High Court — Continuity and Change’ (2005) 27
Aust Bar Rev 4.
H Luntz, D Hambly, K Burns, J Dietrich and N Foster, Torts: Cases and
Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2012, Ch 2.
J Stapleton, ‘Duty of Care and Economic Loss: A Wider Agenda’
(1991) 107 LQR 249.
—, ‘The Golden Thread at the Heart of Tort Law: Protection of the
Vulnerable’ (2003) 24 Aust Bar Rev 1.

1. And, in fact, several state legislatures subsequently modified the common law liability of road
authorities in the civil liability legislation enacted in response to the insurance crisis and the Ipp
Report; Commonwealth of Australia, Review of the Law of Negligence — Final Report (the Ipp
 Report), October 2002, available at
<http://www.treasury.gov.au/ConsultationsandReviews/Reviews/2002/Review-of-the-Law-of-
Negligence>.
2. For a more detailed consideration of the incremental approach, see K M Stanton, ‘Incremental
Approaches to the Duty of Care’ in N J Mullany (ed), Torts in the Nineties, LBC Information
Services, Sydney, 1997, pp 34–55.
3. M Kirby, ‘Judicial Activism? A Riposte to the Counter-reformation’ (2004) 24 Aust Bar Rev 219 at
232.
4. C Radcliffe, The Law and its Compass, Faber and Faber, London, 1960.
5. J Stapleton, ‘The Golden Thread at the Heart of Tort Law: Protection of the Vulnerable’ (2003) 24
Aust Bar Rev 1 at 1–3.
6. For an examination of the various policy considerations in relation to pure psychiatric claims, see
D Butler, ‘An Assessment of Competing Policy Considerations in Cases of Psychiatric Injury
Resulting from Negligence’ (2002) 10 TLJ 13.
7. See note 6 above, at 16–17.
8. The common law already recognised liability for fraudulent misrepresentations in the tort of
deceit: see Chapter 19.
9. But see B Codd, R D Hinchy and V Nase, ‘An Alternative View of Woolcock Street Investments v
CDG Pty Ltd’ (2004) 12 TLJ 194, where the authors argue that commercial realities meant the
plaintiff was not necessarily able to protect itself.
10. Under the Westminster system of government, which Australia inherited from England, the
executive branch of government is distinguished from the two other branches of government: the
judicial and parliamentary branches.
11. The producers and distributors of the oysters were also parties to the action, on the basic
principles of Donoghue v Stevenson, but were found not to be in breach of the duty.
[page 245]
 Chapter 11

Standard of Care and Breach

1 Introduction
11.1 Gummow J in Roads and Traffic Authority of New South Wales v
Dederer (2007) 234 CLR 330; 238 ALR 761 at [18] explained the settled legal
principles in respect of establishing a breach of a duty of care:
… the proper resolution of an action in negligence depends on the existence and scope of the
relevant duty of care. Secondly, whatever its scope, a duty of care imposes an obligation to
exercise reasonable care; it does not impose a duty to prevent potentially harmful conduct.
Thirdly, the assessment of breach depends on the correct identification of the relevant risk of
injury. Fourthly, breach must be assessed prospectively and not retrospectively. Fifthly, such an
assessment of breach must be made in the manner described by Mason J in Wyong Shire Council
v Shirt (1980) 146 CLR 40; 29 ALR 217.

11.2 The negligence action is concerned as to whether the defendant failed

to achieve the standard of care imposed by the law. Alderson B stated in Blyth
v Birmingham Waterworks Co (1856) 11 Ex 781 at 782:
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.

Therefore ‘while duties of care may vary in content or scope, they are all to
be discharged by the exercise of reasonable care’: Roads and Traffic Authority
of New South Wales v Dederer (2007) 234 CLR 330; 238 ALR 761 at [49];
Vairy v Wyong Shire Council (2005) 223 CLR 422; 221 ALR 711.

11.3 In determining whether the duty of care has been breached, two
issues need to be addressed:
 1. What is the relevant standard of care?
2. Has that standard been breached?
In practice, most of the evidentiary contests in litigation centre on evidence
in respect of the element of breach, rather than the existence of a duty or the
damage.

[page 246]

2 Standard of Care
Objective Test
11.4 The standard of care required in a particular case is a question of law
for the court to determine: Glasgow Corporation v Muir [1943] AC 448 at 454;
Bolton v Stone [1951] AC 850 at 860; Paris v Stepney Borough Council [1951]
AC 367 at 384.

11.5 An objective standard is applied and, in order to achieve this,

reference is made to the reasonable person. Lord Radcliffe, in Davis
Contractors v Fareham Urban District Council [1956] AC 696 at 722, stated
‘the reasonable man’ was ‘the anthropomorphic conception of justice’. The
use of this fictional figure is designed to mask the value judgments of judges
in determining, as a matter of policy, what reasonable conduct ought to be.

11.6 The courts stress that reasonable care must be measured according to
the circumstances of each case, including the relationship between the
plaintiff and defendant: Smith v Jenkins (1970) 119 CLR 397 at 400. In Imbree
v McNeilly (2008) 236 CLR 510; 248 ALR 647 at [69], it was stated:
The common law recognises many circumstances in which the standard of care expected of a
person takes account of some matter that warrants identifying a class of persons or activities as
required to exercise a standard of care different from, or more particular than, that of some
 wholly general and “objective community ideal”. Chief among those circumstances is the
profession of particular skill. A higher standard of care is applied in those cases. That standard
may be described by reference to those who pursue a certain kind of occupation, like that of
medical practitioner, or it may be stated, as a higher level of skill, by reference to a more specific
class of occupation such as that of the specialist medical practitioner. At the other end of the
spectrum, the standard of care expected of children is attenuated. [footnotes omitted]

11.7 Therefore, although it is an objective test, certain characteristics or

circumstances must be taken into account in order to determine the relevant
standard of care. As Davies and Malkin note, ‘it makes no sense to ask what a
reasonable person would or would not do while performing brain surgery
unless one assumes that the reasonable person is, like the actual defendant, a
brain surgeon’.1

11.8 The standard of care has been restated in some of the civil liability
legislation as being that required of a reasonable person in the defendant’s
position who was in possession of all the information that the defendant
either had, or ought reasonably to have had, at the time of the incident out of
which the harm arose: see Civil Law (Wrongs) Act 2002 (ACT) s 42; Civil
Liability Act 1936 (SA) s 31.

Children
11.9 Young children are expected to exercise only the degree of care one
would expect of a child of the same age and experience: McHale v Watson
(1966) 115 CLR 199.

[page 247]

McHale v Watson involved a 12-year-old defendant who threw a steel dart

at a wooden post while playing. The dart struck the plaintiff, a nine-year-old,
in the eye. The plaintiff sued the defendant, alleging that the defendant had
failed to take reasonable care in throwing the dart. The High Court of
Australia held, by a majority of 2:1, that the defendant had not been negligent.
Although an adult might have been negligent if the dart had been thrown in
the same way, the defendant, a 12-year-old, was not. Kitto J stated (at 213):
[A] defendant does not escape liability by proving that he is abnormal in some respect which
reduces his capacity for foresight or prudence. The principle is of course applicable to a child.
The standard of care being objective, it is no answer for him, any more than it is for an adult, to
say that the harm he caused was due to his being abnormally slow-witted, quick-tempered,
absent-minded or inexperienced. But it does not follow that he cannot rely in his defence upon a
limitation upon the capacity for foresight or prudence, not as being personal to himself, but as
being characteristic of humanity at his stage of development and in that sense normal.

11.10 If the child engages in adult activities the child may be judged by the
standard of a reasonable adult: Tucker v Tucker [1956] SASR 297 (driving a
motor vehicle). See Zanner v Zanner (2010) 79 NSWLR 702 where it was held
that an 11-year-old driving his mother’s car under her supervision into the
family carport had breached the standard of care. Tobias JA stated (at [60]):
The act of negligence in the present case was the failure of the first appellant to keep his foot on
the brake and to prevent it slipping onto the accelerator. That was not an activity whose
importance would be beyond the understanding of an 11 year old. It is a mistake that could
happen to an adult as well as to a child of the first appellant’s age. There is no reason, in my
view, why the first appellant was not bound to exercise reasonable care not to permit his foot to
so slip. There is nothing to suggest that he did not understand the purpose of the brake or the
effect of depressing the accelerator. It would not be unreasonable to infer that an 11 year old,
who had successfully manoeuvred his father’s vehicle into and out of the carport on five or six
previous occasions, understood the purpose of the brake and how it fitted into the function he
was undertaking and that it was important that he not take his foot off the brake as the car
would then move forward (or back if he was in reverse) more rapidly.

Physical or mental impairment

11.11 Since the standard is that of the reasonable person, one general
implication is that any disability in the defendant must be disregarded; for
example, individual intelligence should be ignored: Baxter v Woolcombers Ltd
(1963) 107 Sol Jo 553.

11.12 Nevertheless, the courts are prepared to look to the circumstances of

every case so that if the defendant does suffer from a physical disability (for
example, epilepsy), the test of reasonable care may depend on whether the
defendant, in the circumstances, embarked upon a task demanding alertness
having regard to what he or she knew or ought to have known about the
disability. In Roberts v Ramsbottom [1980] 1 All ER 7, the defendant caused a
few motor vehicle accidents in one journey but claimed not to be liable in
negligence as 20 minutes prior he had suffered a stroke and, therefore, was
not able to control his car properly or to appreciate that he was not capable of
driving. The court found the defendant to be liable as he had been aware of
his disabling symptoms after the first incident but

[page 248]

had continued to drive. Although the defendant was not able to appreciate
the proper significance of the symptoms, impaired judgment was no defence.

11.13 Mental disability should also be ignored as the reasonable person is

never insane: Adamson v Motor Vehicle Insurance Trust (1957) 58 WALR 56.
In Carrier v Bonham [2002] 1 Qd R 474 at [8], McMurdo P of the Queensland
Court of Appeal stated:
Whilst a child’s actions in a negligence claim can be judged by the objective standard to be
expected of an ordinary reasonable child of comparable age, the action of an adult lacking
capacity because of mental illness in a negligence claim cannot be similarly judged by any
objective standard of an ordinary reasonable person suffering from that mental illness; if the
mental illness has deprived the person of capacity then the person has also been deprived of
rationality and reasonableness. The standard of care must be the objective standard expected of
the ordinary person.

Skill and knowledge

11.14 A person having a special skill or knowledge above that of a
reasonable person will be expected to attain the standard of a reasonable
person with that skill or knowledge: Chin Keow v Government of Malaysia
[1967] 1 WLR 813. In Lanphier v Phipos (1838) 8 C & P 475 at 479; 173 ER
581 at 583, it was explained:
Every person who enters into a learned profession undertakes to bring to the exercise of it a
reasonable degree of skill and care. He does not undertake, if he is an attorney, that at all events
you shall gain your case, nor does a surgeon undertake that he will perform a cure; nor does he
undertake to use the highest possible degree of skill. There may be persons who have higher
education and greater advantages than he has, but he undertakes to bring a fair, reasonable and
competent degree of skill.

See also Heydon v NRMA Ltd (2000) 51 NSWLR 1 at 117, where it was
stated:
[Barristers and solicitors] are bound to have and to exercise the degree of skill and care that is to
be expected of persons professing and practising in their area of expertise … In giving advice, a
lawyer does not warrant or guarantee the soundness of his or her opinion but only that the
requisite degree of skill and care has been used in arriving at it.

11.15 Specialising within a field will also be taken into account when
determining the standard of care. For example, the standard of care expected
of a medical practitioner is that of a normally skilful and careful medical
practitioner: Mahon v Osborne [1939] 2 KB 14. A specialist, though, will owe
a standard of the skill of persons practising in that area of speciality: Rogers v
Whitaker (1992) 175 CLR 479 at 483; 109 ALR 625 at 631. The same applies
to a legal practitioner. In Yates Property Corporation Pty Ltd (in liq) v Boland
(1998) 85 FCR 84 at 105; 157 ALR 30 at 50–1, it was held:
When a client retains a firm that is or professes to be specially experienced in a discrete branch
of the law that client is entitled to expect that the standard of care with which his retainer will be
performed is consistent with the expertise that the firm has or professes to have. …

Thus, the content of the standard of care that is to be owed by a solicitor to his client under the
general law should not be confined to the standard of care and skill that is possessed by a person
of ordinary competence exercising the same calling. The standard should reflect the fact that

[page 249]

within any one calling practitioners have or profess to have varying degrees of expertise. The
standard of care and skill required of such a person must bear some relationship to that
 expertise. In the case of a solicitor who is an expert in a particular branch of the law the
requirement should be that the solicitor must carry out his retainer as would a reasonably
competent solicitor who is an expert in that particular area of the law.

See also Goddard Elliott (a firm) v Fritsch [2012] VSC 87 at [412]–[414].

In Swick Nominees Pty Ltd v Leroi International Inc (No 2) [2015] WASCA
35 at [133], the standard of care of an engineer in respect of the design and
manufacture of a machine was described as:
… what a reasonably competent engineer in the position of the designer and manufacturer
would have done, in the circumstances, to produce a machine that was able reliably to perform
its ordinary functions. This involves identifying, with some precision, the design and the
manufacturing process that the reasonably competent engineer would have adopted.

Lack of knowledge or skill

11.16 As the test of the standard of care is objective, lack of knowledge
cannot be pleaded if a reasonable person in the circumstances would possess
that knowledge. Likewise, if a reasonable person would not possess the
knowledge or skill, it cannot be argued that the knowledge or skill sets the
standard.
In Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; 201 ALR 139, the
plaintiffs suffered pure economic loss after planting canola seeds, sold by the
defendant, which contained weeds. The Western Australian authority
required the fields of canola to be cleared and the seeds from the crops to be
destroyed for a period of five years. The High Court approved the approach
of Finkelstein J of the Federal Court ((2000) 105 FCR 467 at 506), stating (at
[163]):
… the usual knowledge of an agricultural scientist cannot set the standard of care to be observed
by a seed merchant. Further, common knowledge of the kind to which the primary judge
referred is of no significance unless there is a basis for concluding that the reasonable person in
Dovuro’s position not only ought reasonably to have known, or to have found out, whether any
of the three plants already grew in the area concerned, but also knew, or ought reasonably to
have known that, if the plants were exotic, they would or may later be declared to be prohibited
plants.

11.17 Reasonable care must be related to the circumstances of the time

and place. For example, the standard of care of a doctor in a particular case
must be related to medical knowledge at the time of the alleged breach: Roe v
Minister of Health [1954] 2 QB 66. The trial often takes place several years
after the damage is sustained, when further medical advances have taken
place that were not in existence as medical practice at the time of the act or
omission. The defendant is not to be credited with such hindsight. In H v
Royal Alexandra Hospital for Children (1990) Aust Torts Reports ¶81-000, the
failure to warn of the risk of AIDS being transmitted through anti-
haemophilic therapy was not negligent at the time.

11.18 The civil liability legislation has affirmed this in provisions in

relation to the standard of care for professionals. Section 22(1) of the Civil
Liability Act 2003 (Qld) states

[page 250]

that the service provided is judged as at the time the service was provided. See
also Civil Liability Act 2002 (NSW) s 5O(1); Civil Liability Act 1936 (SA) s
41(1); Civil Liability Act 2002 (Tas) s 22(1); Wrongs Act 1958 (Vic) s 59(1);
Civil Liability Act 2002 (WA) s 5PB(1). The legislation in the Australian
Capital Territory and South Australia also provides a generic statement that
the standard of care is that of a reasonable person as at the time of the
incident: Civil Law (Wrongs) Act 2002 (ACT) s 42; Civil Liability Act 1936
(SA) s 31(1).

11.19 Persons carrying out tasks that require certain skills, without
claiming to possess those skills, cannot owe the same standard of care as a
reasonable person possessing those skills. Laypersons carrying out tasks that
trained persons ordinarily would perform will not owe the higher standard of
the trained person. In Blackmore v Beames (SASC, King CJ, Cox and
Matheson JJ, No 92–709, 8 February 1993, unreported), the defendants
assisted the plaintiff in work on the transom of the plaintiff’s motor launch.
The defendants did not possess any particular skills in relation to transoms.
King CJ stated (at 3):
The relationship in this case is of particular importance. There was no contractual relationship
between the parties nor any business element in the relationship. The defendants did not hold
themselves out as tradesmen and there is no question, therefore, of applying the standard of care
and skill to be expected of a person carrying on a particular trade or calling. The relationship
was simply that of persons assisting a friend in a task which he wished to have performed. The
first named plaintiff was aware that the defendants did not hold themselves out as possessing
any relevant skills. In those circumstances I consider that the plaintiffs could expect of the
defendants the exercise of only such degree of skill and knowledge in relation to the task as they
actually possessed, together with the degree of care which a reasonable person would exercise in
such circumstances.

On the facts of that case, there had been no breach of the standard:
I do not think that any want of reasonable care has been proved. There was an error of judgment
in not ensuring that water could not enter the boat but the error resulted not from want of care
but from a mistaken belief as to the thickness of the transom. In the circumstances I consider
that the error of judgment did not amount to a breach of the defendants’ duty to the plaintiffs: at
5.

11.20 However, if a defendant carries out a task that a reasonable person

would believe requires an expert to perform, they are holding themselves out
to possess those skills and will be judged according to the standard of care
required of such an expert: Caminer v Northern & London Investment Trust
Ltd [1951] AC 88 at 108, 111–12, cited with approval in Papantonakis v
Australian Telecommunications Commission (1985) 156 CLR 7; 57 ALR 1. In
Papantonakis v Australian Telecommunications Commission, Deane J stated
(at CLR 36; ALR 22):
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
(see, eg Haseldine v C A Daw & Son Ltd [1941] 2 KB 343 at 356; Wells v Cooper [1958] 2 QB 265
at 271). If he meddles himself, he cannot complain if the standard of care and foreseeability of
injury which the law exacts of him are not those of the hypothetical person on a hypothetical
Bondi tram or Clapham omnibus but those of the ‘ordinary skilled [person] exercising and
 [page 251]

professing to have that special skill’ (per McNair J, Bolam v Friern Hospital Management
Committee [1957] 1 WLR 582 at 586).

This position has been restated in legislation in South Australia and

Victoria, where a defendant holding themselves out as possessing a particular
skill will be judged according to the level of skill that could be reasonably
expected of a person possessing that skill: Civil Liability Act 1936 (SA) s 40;
Wrongs Act 1958 (Vic) s 58.

Inexperience
11.21 No allowance is made for inexperience where there is the exercise of
some special skill involved. An inexperienced medical practitioner is expected
to reach the usual standard of a normally skilful and careful practitioner:
Jones v Manchester Corporation [1952] 2 QB 852 at 868; Hancock v
Queensland [2002] QSC 027 at [10].

11.22 In 1986, the High Court created an exception to this principle in

Cook v Cook (1986) 162 CLR 376; 68 ALR 353, holding that inexperience
could lower the standard of care if a special relationship existed between the
plaintiff and defendant. A special relationship could be established if the
plaintiff knew of the defendant’s inexperience and the breach of duty arose
from the defendant carrying out the activity in which they were
inexperienced. In such circumstances, the standard of care was to reflect that
inexperience.

11.23 However, the High Court revised this position in Imbree v McNeilly
(2008) 236 CLR 510; 248 ALR 647. The appellant was injured in a car
accident, the respondent driver being 16 years old and unlicensed. The
respondent, driving the high-set vehicle at approximately 80 km per hour,
swerved around debris on the gravel road but steered too far left, causing the
wheels to go onto the shoulder of the road which consisted of loose sand,
gravel and dust. Instead of steering back onto the road, the respondent
accelerated and turned too far right, causing the vehicle to cross the road. The
respondent then attempted to right the vehicle but oversteered once again,
resulting in the vehicle rolling onto its roof.
Before the New South Wales Court of Appeal, the respondent argued that
the acceleration and the oversteering was a product of inexperience and was
not a breach of the relevant standard of care. Applying the decision of Cook v
Cook, the majority (Beazley and Basten JJA) held that the actions of the
respondent had breached the standard of care expected from an
inexperienced driver: McNeilly v Imbree (2007) 47 MVR 536; Aust Torts
Reports ¶81-895.
On appeal to the High Court, the appellant argued that the decision of
Cook v Cook should be overruled and that it should be held that the
respondent owed him ‘the same objective standard of care as a licensed
driver’: at [37]. A majority of the High Court (6:1) agreed with that
proposition and held that learner drivers owe the same standard of reasonable
care to all road users, including driving instructors, supervisors and
passengers. Gummow, Hayne and Kiefel JJ stated (at [57]–[58]):
Describing the relevant comparator as the reasonable ‘inexperienced’ driver does not sufficiently
identify the content of the standard of care that is intended to be conveyed by the use of the
word “inexperienced”. In particular it leaves undefined what level of competence is to be
assumed in such a driver. …

[page 252]

What is at issue is the definition of a standard of reasonable care, not any external recognition of
attaining an ability to drive in accordance with that standard. And for like reasons, to describe
the relevant comparator as a “licensed driver” diverts attention from the central inquiry: what
would a reasonable driver do? Being authorized by the applicable law to drive unsupervised on a
public road is neither necessary nor a sufficient characteristic of the reasonable driver. Holding
or not holding the relevant licence is irrelevant to the description or application of the relevant
 standard of care. The reasonable driver is to be identified by what such a driver would do or not
do when driving, not by what authority a driver would need to have in order to drive lawfully.

11.24 In Cook v Cook (1986) 162 CLR 376; 68 ALR 353, the imposition of
a reduced standard of care hinged upon the plaintiff’s knowledge of the
defendant’s inexperience and lack of skill. Such knowledge was held in Imbree
v McNeilly (2008) 236 CLR 510; 248 ALR 647 not to be a sufficient nor certain
enough basis to conclude that ‘some lesser yet objective standard of care
should be applied’: at [86]. The standard of care expected from a learner
driver is that of a reasonable driver: at [72].
Only Heydon J declined to overrule Cook v Cook, stating that even if the
standard of care as mandated by Cook v Cook applied to the respondent’s
duty of care, the trial judge’s finding that the respondent had ‘behaved with
carelessness over and above what could be attributed merely to inexperience’
(McNeilly v Imbree (2007) 47 MVR 536; Aust Torts Reports ¶81-895 at [48])
was correct: (2008) 236 CLR 510; 248 ALR 647 at [186].

11.25 The overruling of the reduced standard, based upon knowledge of

inexperience established over 20 years ago in Cook v Cook, brought
Australian law into line with the position of the United Kingdom. In
Nettleship v Weston [1971] 2 QB 691, the plaintiff was injured while giving
driving lessons to a friend. The English Court of Appeal held that the
defendant owed the same standard of care as a competent and experienced
driver to her passenger, despite her inexperience. Kirby J, in Imbree v
McNeilly, stated that he agreed with the practical considerations that Megaw
LJ in Nettleship v Weston (at 707–9) referred to in rejecting the argument that
a lower standard of care was owed: 236 CLR 510; 248 ALR 647 at [135]. The
considerations included:
the unpredictability of having different standards owed by the same
driver to different categories of road users;
that lengthy debates would arise to determine the exact state of
inexperience; and
 the extent of the inexperience may not be revealed until the actual
incident.

Intoxication
11.26 It is often stated by the courts that the reasonable person is a sober
person: Joslyn v Berryman (2003) 214 CLR 552; 198 ALR 137 at [38]. In
Insurance Commissioner v Joyce (1948) 77 CLR 39, the High Court held that a
passenger who knows the circumstances and voluntarily rides with a drunken
driver cannot expect any degree of care in driving, so far as it is affected by
the drunkenness. This reduced standard of care argument, often referred to as
the ‘no breach of duty’ defence, was not raised in many cases, the more
common approach being to raise the defences of contributory negligence and
voluntary assumption

[page 253]

of risk: see Chapter 13. With the decision of Imbree v McNeilly (2008) 236
CLR 510; 248 ALR 647 overruling the notion of a reduced standard of care, in
respect of learner drivers, the argument will now fail.

11.27 Section 31(2) of the Civil Liability Act 1936 (SA) provides for a
change in the standard of care owed if specific circumstances exist. The
subsection states:
The reasonable person in the defendant’s position will be taken to be sober unless —
(a) the defendant was intoxicated; and
(b) the intoxication was wholly attributable to the use of drugs in accordance with the
prescription or instructions of a medical practitioner; and
(c) the defendant was complying with the instructions and recommendations of the medical
practitioner and the manufacturer of the drugs as to what he or she should do, or avoid
doing, while under the influence of the drugs, and, in that event, the reasonable person
will be taken to be intoxicated to the same extent as the defendant.
 There are no equivalents in the other jurisdictions.

Emergency
11.28 An emergency may render an action reasonable that, in other
circumstances, would not be considered reasonable. The courts acknowledge
that defendants may not recognise what is reasonable if the circumstances are
such that they are acting under pressure. An example of this can be found in
Broughton v Competitive Foods Australia Pty Ltd (2005) Aust Torts Reports
¶81-791, where the plaintiff had entered the premises of a fast food
restaurant, seeking safety from a group of young men who were chasing him.
The security guard of the restaurant turned him out of the premises. After
being forced to leave the restaurant, the plaintiff was attacked by the group
and was injured. The plaintiff argued that the security guard, employed by the
defendant, was negligent in turning him out of the premises. The Court of
Appeal took into account the fact that the security guard was acting under
pressure. Hodgson JA stated (at [13]):
In the heat of the moment, it would have been difficult for such a person to make an accurate
assessment of the probability of the group outside attempting to enter the premises, of whether
and/or how this could be prevented, of what might happen in that event, and of how all the
opposing considerations properly balanced out. On calm reflection and with the wisdom of
hindsight, I am inclined to think the right response would have been not to eject the plaintiff
and his friends; but I am not satisfied that the ordinary reasonable person would have
appreciated this in the heat of the moment.

11.29 In relation to assisting in a medical emergency, the possibility of not

acting reasonably has been recognised in ss 26 and 27 of the Civil Liability Act
2003 (Qld). For example, s 26 states:
(1) Civil liability does not attach to a person in relation to an act done or omitted in the
course of rendering first aid or other aid or assistance to a person in distress if —
(a) the first aid or other aid or assistance is given by the person while performing duties
to enhance public safety for an entity prescribed under a regulation that provides
services to enhance public safety; and
 [page 254]

(b) the first aid or other aid or assistance is given in the circumstances of emergency;
and
(c) the act is done or committed in good faith and without reckless disregard for the
safety of the person in distress or someone else.

‘Person in distress’ is defined in s 25 to include a person who is injured or

suffering an illness, apparently injured or suffering an illness or at risk of
injury. This section applies to a person ‘performing duties to enhance public
safety’ for a prescribed entity (s 26(1)(a)) or the prescribed entity itself: s 27(1)
(a). The Civil Liability Regulation 2003 (Qld) lists the entities and persons
protected by these sections, for example protection is given to the Queensland
Ambulance Service and the Queensland Fire and Rescue Service: Sch 1 and 2.
The civil liability legislation of most jurisdictions gives protection if aid is
given at the scene of an emergency, in good faith and without recklessness
(called protection of good Samaritans): Civil Law (Wrongs) Act 2002 (ACT) s
5; Civil Liability Act 2002 (NSW) Pt 8; Personal Injuries (Liabilities and
Damages) Act 2003 (NT) s 8; Civil Liability Act 1936 (SA) s 74; Civil Liability
Act 2002 (Tas) Pt 8A; Wrongs Act 1958 (Vic) Pt VIA; Civil Liability Act 2002
(WA) Pt 1D. There is no equivalent in Queensland.
In Western Australia, the Civil Liability Act 2002 s 5AAC provides
protection to staff members of schools and child care centres for acts or
omissions at the scene of an emergency in assisting an enrolled child in need
of emergency medical assistance. No civil liability will be incurred by the staff
member if the act or omission is in good faith and without recklessness in the
course of their employment. The provision does not affect the vicarious
liability of any person for the act or omission of the staff member (s
5AAC(2)) and will not apply if at the time the staff member’s ability to
exercise reasonable care was impaired by self-induced intoxication by alcohol
or drugs: s 5AAD.
Skill and knowledge of the plaintiff
11.30 The special skill of a plaintiff may have to be weighed in setting the
standard of care. Bus v Sydney County Council (1989) 167 CLR 78; 85 ALR
577 illustrates the implications of both plaintiff and defendant being skilled.
The case involved a council electrician who had been working on a Sydney
County Council service box and a private electrician who was working in the
same area. The private electrician commenced work adjacent to the service
box and came into contact with live terminals, causing him to be fatally
electrocuted. His widow and children brought an action against the council.
The trial judge refused to find negligence on the part of the council
electrician.
The New South Wales Court of Appeal dismissed the appeal ((1988) 12
NSWLR 675), following the High Court decision of Sydney County Council v
Dell’Oro (1974) 132 CLR 97; 4 ALR 417, holding that a competent electrical
tradesman has no responsibility to protect other competent electrical
tradesmen against the risk of injury from inadvertent contact with live
electrical equipment controlled by the first tradesman, when the risk is
known to the injured tradesman.
On appeal to the High Court, it was held that the decision in Sydney
County Council v Dell’Oro turned on the failure to observe the standard of
care appropriate in the circumstances of

[page 255]

that particular negligence case, rather than on the precise scope of the duty of
care, and, hence, the earlier case did not formulate a binding statement of
general principle. It also did not support an inflexible proposition that expert
tradesmen are expected to see to their own safety as regards known risks
involved in their daily work. Since that decision, the law has placed increased
emphasis on the relevance of the possibility of negligence or inadvertence by
the person to whom the duty is owed and that possibility is relevant to the
standard of care owed by employer to employee. See, for example, S J Sanders
Pty Ltd v Schmidt [2012] QCA 358 at [29].

Child plaintiff
11.31 If the plaintiff is a child, this may impose a higher standard of care
upon the defendant: Shellharbour City Council v Rigby (2006) 150 LGERA 11;
Aust Torts Reports ¶81-864. For example, motorists owe a greater standard of
care when in the vicinity of children: see Mitchell v Government Insurance
Office (NSW) (1992) 15 MVR 369 at 372–5; Gunning v Fellows (1997) 25
MVR 97 at 98; Mobbs v Kain (2009) 54 MVR 179 at [87]; Baker v MacKenzie
(2015) 72 MVR 421 at [33].

11.32 The age and experience of the child will be relevant in determining
the standard of care owed. In Doubleday v Kelly [2005] NSWCA 151, the
court held that the defendants were in breach of the duty of care they owed to
the seven-year-old plaintiff. Bryson J stated the factors that may be taken into
account:
… circumstances include the age and experience of the children and any special characteristics
which a particular child may have, such as being adept in the use of the equipment, or being
known to be inept; there are many possible variations in circumstances, including most
importantly the age and experience of the children: at [19].

See also Leyden v Caboolture Shire Council [2007] QCA 134.

Intoxicated plaintiff
11.33 The fact that a plaintiff is intoxicated at the time they are injured
does not impose a higher standard of care upon a defendant. In Parsons v
Randwick Municipal Council [2003] NSWCA 171, it was held that a plaintiff
who alleged a breach of duty against a council in respect of injuries they
suffered as a result of tripping over a crack in a footpath when affected by
alcohol, had to establish that a sober pedestrian would not have seen the crack
and would have been injured.
 Some jurisdictions have expressly stated in the civil liability legislation that
the intoxication of the plaintiff does not of itself increase the standard of care
owed: Civil Liability Act 2002 (NSW) s 49(1)(c); Civil Liability Act 2003 (Qld)
s 46(1)(c). See also Cole v South Tweed Heads Rugby League Football Club Ltd
(2004) 217 CLR 469; 207 ALR 52.

3 Breach of Standard
11.34 Once the standard of care owed by the defendant in the
circumstances has been set, it is then a question of fact whether the defendant
has achieved that standard or is in breach.

[page 256]

Section 9 of the Civil Liability Act 2003 (Qld) states:

(1) A person does not breach a duty to take precautions against a risk of harm unless —
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought
reasonably to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the position of the person would have
taken the precautions.

See also Civil Law (Wrongs) Act 2002 (ACT) s 43; Civil Liability Act 2002
(NSW) s 5B; Civil Liability Act 1936 (SA) s 32; Civil Liability Act 2002 (Tas) s
11; Wrongs Act 1958 (Vic) s 48; Civil Liability Act 2002 (WA) s 5B. There is
no equivalent provision in the Northern Territory legislation.

11.35 The civil liability legislation provisions relating to breach of duty of

care have been described as a restatement of the law contained in the High
Court decision of Wyong Shire Council v Shirt (1980) 146 CLR 40; 29 ALR
217: see New South Wales v Fahy (2007) 232 CLR 486; 236 ALR 406; Council
of the City of Greater Taree v Wells [2010] NSWCA 147; Waverley Council v
Ferreira (2005) Aust Torts Reports ¶81-818 at [45].

11.36 In New South Wales v Fahy (2007) 232 CLR 486; 236 ALR 406, there
was an attempt to have the principle of Wyong Shire Council v Shirt overruled
by the High Court, but instead there was strong opposition to such an
argument. Gummow and Hayne JJ stated (at [79]):
… contrary to an argument advanced on behalf of the state, the fact that states and territories
have chosen to enact legislation which, in some cases, may alter the way in which questions of
breach of duty of care are to be approached in actions for damages for negligence provides no
reason to re-express this aspect of the common law. If anything, the diversity of legislative
approaches manifest in legislation enacted on this subject points away from the desirability of
restating the common law. [footnotes omitted]

11.37 In applying the civil liability legislation provisions, three questions

need to be addressed in order to determine whether the standard of care has
been breached in fact:
1. Was the risk foreseeable?
2. Was the risk not insignificant?
3. Would a reasonable person in the position of the defendant have
taken the precautions?
Note, however, that Basten JA, in Drinkwater v Howarth [2006] NSWCA
222 at [21], stated:
I would only add that there is a danger in seeking to take each limb of s 5B [of the Civil Liability
Act 2002 (NSW)] separately in considering how it should operate. It is clear from the report of
the committee which recommended the change to the foregoing common law principles that in
changing the terminology from not far-fetched or fanciful they were concerned to ensure that
attention was given to other aspects of the risk.

Foreseeable and Not Insignificant Risk

11.38 In order for the defendant to be liable in negligence, it is necessary
that it was foreseeable that the kind of carelessness by the defendant might
cause some kind of
 [page 257]

damage to the plaintiff. Further, since the civil liability legislation, the risk
must be not insignificant. The Ipp Report2 noted that the decision of Wyong
Shire Council v Shirt (1980) 146 CLR 40; 29 ALR 217 was used to justify a
conclusion that the standard of care had been breached on the basis that the
risk of injury was reasonably foreseeable, without sufficient consideration of
the precautions that a reasonable person would take: at [7.14]. The Ipp Report
recommended that the formula laid down in Wyong Shire Council v Shirt
needed to be modified by replacing the phrase ‘not far-fetched or fanciful’
with ‘not insignificant’: Ipp Report, Recommendation 28. At [7.15] of the
report, it states:
The phrase “not insignificant” is intended to indicate a risk that is of a higher probability than is
indicated by the phrase “not far-fetched or fanciful”, but not so high as might be indicated by a
phrase such as “a substantial risk”. The choice of a double negative is deliberate. We do not
intend the phrase to be a synonym for “significant”. “Significant” is apt to indicate a higher
degree of probability than we intend.

It is important to note that when considering whether a risk is foreseeable

and not insignificant, ‘a mechanical or formulaic approach’ is not adopted as
‘[u]ltimately, the content of the standard of care, … is an issue of fact, which
is to be resolved by an exercise of common sense’: Erickson v Bagley [2015]
VSCA 220 at [37].

Foreseeable risk
11.39 A defendant cannot be held liable for a risk which they neither had
knowledge of nor ought to have known: Tame v New South Wales; Annetts v
Australian Stations Pty Ltd (2002) 211 CLR 317; 191 ALR 449. The defendant
must either know of the risk or a person in their position ought to have
known of the risk: Wyong Shire Council v Shirt (1980) 146 CLR 40; 29 ALR
217.
Wyong Shire Council v Shirt (1980) 146 CLR 40; 29 ALR 217 is the most
cited case in respect of breach in negligence as it discusses the foreseeability of
the risk and the calculus of negligence under the common law. The facts were
that the defendant shire council had dredged a deep channel in a shallow lake
and put up signs by the channel advising ‘Deep Water’. The signs were
intended to signify that the water between them was deep. The plaintiff, an
inexperienced water-skier, fell from his skis while skiing in shallow water near
the signs and struck his head on the shallow bottom of the lake. He suffered
quadriplegic paralysis as a result. The plaintiff had been under the impression
that the signs meant that the water all around them was deep.
The plaintiff sued the defendant council, alleging that it had been negligent
by putting up misleading signs. A majority of the High Court of Australia
held that the defendant council had been negligent, even though the risk of
someone misunderstanding the signs was slight, as Mason J (with whom
Stephen and Aickin JJ agreed) said:
A risk of injury which is quite unlikely to occur … may nevertheless be plainly foreseeable.
Consequently, when we speak of a risk of injury as being “foreseeable” we are not making any

[page 258]

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. 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.

… [A] risk of injury which is remote in the sense that it is extremely unlikely to occur may
nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and
therefore foreseeable: at CLR 47; ALR 221.

11.40 The mere recognition that a risk was foreseeable does not, by itself,
impose liability on the defendant: Tame v New South Wales; Annetts v
Australian Stations Pty Ltd (2002) 211 CLR 317; 191 ALR 449.

11.41 It is not necessary that the chain of events leading to risk of injury is
foreseeable. For example, if a plaintiff has susceptibility and the defendant did
not know and could not reasonably be taken to have known, then the
defendant will not be liable for negligence. In Tame v New South Wales;
Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; 191 ALR 449, the
High Court held that a police officer who had never met the plaintiff could
not possibly have foreseen that an error made on a police report (the
recording of a blood alcohol content reading at the time of a car accident)
would cause the plaintiff to suffer a psychiatric condition.

11.42 Special care must be taken to ensure that the risk is not foreseeable
merely because of hindsight. In Rosenberg v Percival (2001) 205 CLR 434; 178
ALR 577 at [16], Gleeson CJ stated:
In the way that litigation proceeds, the conduct of the parties is seen through the prism of
hindsight. A foreseeable risk has eventuated, and harm has resulted. The particular risk becomes
the focus of attention. But at the time of the allegedly tortious conduct, there may have been no
reason to single it out from a number of adverse contingencies, or to attach to it the significance
it later assumed.

In Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; 260 ALR 628, a
fight broke out on the appellant’s premises on New Year’s Eve. One of the
men involved in the fight left the premises and returned with a gun and shot
the respondent and another. The respondent successfully argued before the
Court of Appeal that the appellant had breached its duty of care by failing to
employ licensed security personnel to act as crowd controllers and bouncers.
The High Court, however, allowed the appeal, stating that the risk had to be
determined prospectively (at [40]) and:
… unless the risk to be foreseen was a risk of a kind that called for, as a matter of reasonable
precaution, the presence or physical authority of bouncers or crowd controllers to deal with it
safely, failure to provide security of that kind would not be a breach of the relevant duty of care.
As noted earlier, there was no finding at trial or in the Court of Appeal that a risk of that kind
should have been foreseen: at [38].

See also Guildford Rugby League Football & Recreational Club Ltd v Coad
(2001) Aust Torts Reports ¶81-623.
 [page 259]

Not insignificant risk

11.43 As noted at 11.38, the civil liability legislation in many jurisdictions
has modified the common law by adding to the consideration of reasonable
foreseeability the question of whether the risk was not insignificant. The test
of reasonable foreseeability was often criticised as being too easily satisfied.
Dixon J in Chapman v Hearse (1961) 106 CLR 112 at 115 observed, ‘I cannot
understand why any event which does happen is not foreseeable by a person
of sufficient imagination and intelligence’. In Romeo v Conservation
Commission (NT) (1998) 192 CLR 431; 151 ALR 263 at [156], Hayne J
commented ‘the fact than an accident has happened and injury has been
sustained will often be the most eloquent demonstration that the possibility of
its occurrence was not far-fetched or fanciful’. This is illustrated in Borland v
Makauskas [2000] QCA 521, where the plaintiff dived into a canal, knowing
that the water was not deep until approximately 10 ft out. The Queensland
Court of Appeal held that it was reasonably foreseeable that a person would
stand on the fence of the defendant’s property and attempt to dive into the
canal — highly unlikely, but it was reasonably foreseeable. See also Inverell
Municipal Council v Pennington (1993) Aust Torts Reports ¶81-234 at
62,403–4; Nagle v Rottnest Island Authority (1993) 177 CLR 423 at 430–1; 112
ALR 393 at 397–8.
The High Court in Tame v New South Wales; Annetts v Australian Stations
Pty Ltd (2002) 211 CLR 317; 191 ALR 449 was also critical. McHugh J stated
(at [98]):
Many of the problems that now beset negligence law and extend liability of defendants to unreal
levels stem from weakening the test of reasonable foreseeability.

His Honour went further to suggest that, at the breach stage, the question
of reasonable foreseeability should be abandoned:
So far as possible, the issue of reasonable foreseeability of risk in breach of duty situations
 should no longer be determined in isolation from the issue of reasonable preventability and the
ultimate issue of what reasonable care requires. Indeed at the breach stage, it is better to avoid
the question of reasonable foreseeability. Instead courts should see their task as that of deciding
whether the defendant knew or ought to have recognised that he or she had created an
unreasonable risk of harm to others: at [102].

11.44 There have been a few decisions that consider the phrase and
application of ‘not insignificant‘. In Drinkwater v Howarth [2006] NSWCA
222, the respondent was injured when a friend was pushed towards him by
security officers, causing them both to fall. In considering whether the trial
judge had applied the relevant provision of the civil liability legislation,
requiring that the risk be not insignificant, Basten JA stated (at [19]) that the
provision was:
… not concerned with how a risk came about. If the plaintiff was clearly at risk, then it cannot
be said that the risk was insignificant. It was a clear risk.

In the same case, Hodgson J commented (at [25]):

… there is no possibility of a different result of applying a test that the risk in question be not
insignificant, from applying the test as formulated in Shirt, namely that the risk be not
farfetched or fanciful.

[page 260]

In New South Wales v Fahy (2007) 232 CLR 486; 236 ALR 406 at [226],
Callinan and Heydon JJ did comment that:
… a flexible and realistic test should be substituted for a test of foreseeability of fancifulness or
otherwise. The test that commends itself to us is the one stated by Walsh J at first instance in
The Wagon Mound (No 2) [Miller Steamship Co Pty Ltd v Overseas Tankship (UK) Ltd [1963] SR
(NSW) 948 at 957], that what should be foreseen is a risk that is “significant enough in a
practical sense”.

In the Queensland Court of Appeal, in Meandarra Aerial Spraying Pty Ltd

v GEJ & MA Geldard Pty Ltd [2013] 1 Qd R 319 at [26], in discussing the
phrase, it was stated:
… the provision was designed to increase the degree of probability of harm which is required for
 a finding that a risk was foreseeable. I think that it did produce some slight increase in the
necessary degree of probability. A far-fetched or fanciful risk is necessarily so glaringly
improbable as to be insignificant, but the obverse proposition may not necessarily be true. The
generality of these descriptions makes it difficult to be dogmatic about this, but the statutory
language does seem to convey a different shade of meaning. The difference is a subtle one. The
increase in the necessary degree of probability is not quantifiable and it might be so minor as to
make no difference to the result in most cases. Nevertheless, in deciding claims to which the Act
applies the “not insignificant” test must be applied instead of the somewhat less demanding test
of “not far-fetched or fanciful”.

In Benic v New South Wales [2010] NSWSC 1039, the risk of harm was the
plaintiff, a police officer, suffering psychiatric injury as a result of receiving a
threat to his life in the course of his work. The alleged breach was the failure
to provide prompt and appropriate psychological or psychiatric assistance.
The court noted that whether the risk was not insignificant was to be analysed
from the perspective of the defendant and was to be prospective: at [411]. The
evidence was that the Commissioner of Police had taken a series of steps to
address stress, including psychiatric illness, among police officers. This
evidence satisfied Garling J that the risk of psychiatric illness from the
defendant’s perspective was not insignificant: at [414]. It was reasoned that
the risk of psychiatric harm:
… might affect up to one third of officers exposed to traumatic events, and it was seen by the
Commissioner as sufficient to warrant the expenditure of monies … I doubt that the
Commissioner would have taken these steps if the risk was an insignificant one: at [414].

Shaw v Thomas [2010] NSWCA 169 involved a 10-year-old child being

injured by falling off a bunk bed when staying at a friend’s house. The risk
was defined as the respondent ‘falling and injuring himself whilst descending
from the top bunk of the bed in question’: at [45]. It was held that no
reference should be made to the relevant Australian Standards in respect of
bunk beds or a publication by the Australian Competition and Consumer
Commission that referred to evidence of bunk bed injuries to children, when
assessing whether the risk was not insignificant as the appellants had no
knowledge of such. At [46], Macfarlan JA stated that whether the risk was not
insignificant ‘was to be determined by reference to the circumstances of
which reasonable people in the position of the appellants
 [page 261]

would have been aware’. In Endeavour Energy v Precision Helicopters Pty Ltd
[2015] NSWCA 169 at [32], it was stated:
The significance of a risk involves two main variables, namely the seriousness of the
consequences should the risk materialise and, secondly, the likelihood of the risk materialising.

In Vincent v Woolworths Ltd [2016] NSWCA 40, the Court of Appeal

supported the trial judge’s conclusion that personal injury due to the plaintiff
colliding with a supermarket trolley was foreseeable but did not satisfy the
requirement that it be not insignificant. In coming to this conclusion, note
was taken of the absence of evidence of any previous appreciable injury from
a trolley and the expectation that the plaintiff would be exercising reasonable
care when using a safety step as part of their job as a merchandiser. See also
Doubleday v Kelly [2005] NSWCA 151 at [11]; Bitupave Ltd (t/as Boral
Asphalt) v Pillinger (2015) 72 MVR 460 at [193].

11.45 Section 48(3) of the Wrongs Act 1958 (Vic) attempts to give some
guidance on the meaning of ‘not insignificant’. It states:
(3) For the purposes of sub-section (1)(b) —
(a) insignificant risks include, but are not limited to, risks that are far-fetched or fanciful;
and
(b) risks that are not insignificant are all risks other than insignificant risks and include,
but are not limited to, significant risks.

Reasonable Response to the Risk

11.46 If the risk was foreseeable and was not insignificant, it must be
determined whether a reasonable person would have taken the precautions in
the circumstances. To determine this, reference is made to the calculus of
negligence, that is, how a reasonable person in the position of the defendant
would have responded to the risk. The common law position is summarised
in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47–8; 29 ALR 217 at 221,
where Mason J identified several factors that had been identified by the courts
for consideration in the determination of breach of the standard of care in a
particular case:
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask
itself whether a reasonable man in the defendant’s position would have foreseen that his
conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If
the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable
man would do by way of response to the risk. The perception of the reasonable man’s response
calls for a consideration of 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 which the defendant may have. It is only when these
matters are balanced out that the tribunal of fact can confidently assert what is the standard of
response to be ascribed to the reasonable man placed in the defendant’s position.

11.47 If the defendant has exercised reasonable care they will not be in
breach of their duty. Reasonable care, however, does not require the complete
elimination of all risks: Vairy v Wyong Shire Council (2005) 223 CLR 422; 221
ALR 711 at [49]. The defendant’s conduct must be reasonable in light of the
identified risk: Vairy v Wyong Shire Council (2005) 223 CLR 422; 221 ALR
711 at [59].

[page 262]

11.48 When assessing whether the defendant responded reasonably to the

risk, it must not be done with the benefit of hindsight: Roads and Traffic
Authority of New South Wales v Dederer (2007) 234 CLR 330; 238 ALR 761 at
[18]. This was emphasised by Hayne J in Mulligan v Coffs Harbour City
Council (2005) 233 CLR 486; 221 ALR 764 at [50]:
… it is necessary to ask first, whether the risk of injury of the kind sustained by the plaintiff was
reasonably foreseeable and secondly, what the reasonable person would have done in response
to that risk. Although the judgment about what would have been the reasonable response to the
risk must be made after the event, the inquiry is directed to identifying what the reasonable
response would have been by a person looking forward at the prospect of the risk of injury. That
must be assessed having regard to the magnitude of the risk, the degree of probability of its
occurrence, the expense, difficulty and inconvenience of taking alleviating action and any other
 conflicting responsibilities the alleged tortfeasor may have. And because the inquiry is
prospective, there is no basis for assuming that the only risk to be considered by the reasonable
person is the particular kind of risk that came to pass at the place and in the way it did.

See also New South Wales v Fahy (2007) 232 CLR 486; 236 ALR 406 at [57],
where it was stated that the ‘inquiry requires looking forward to identify what
a reasonable person would have done, not backward to identify what would
have avoided the injury’.

11.49 The civil liability legislation in all Australian jurisdictions, except the
Northern Territory, has restated this calculus of negligence. For example, s
9(2) of the Civil Liability Act 2003 (Qld) states:
In deciding whether a reasonable person would have taken precautions against a risk of harm,
the court is to consider the following (among other relevant things) —

(a) the probability that the harm would occur if care were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity that creates the risk of harm.
See also Civil Law (Wrongs) Act 2002 (ACT) s 43(2); Civil Liability Act
2002 (NSW) s 5B(2); Civil Liability Act 1936 (SA) s 32(2); Civil Liability Act
2002 (Tas) s 11(2); Wrongs Act 1958 (Vic) s 48(2); Civil Liability Act 2002
(WA) s 5B(2). There is no equivalent in the Northern Territory legislation.

11.50 Other ‘relevant things’ that a court may take into account may
include:
customary standards;
professional standards;
statutory standards; and
anticipation.
Not every one of these factors will be relevant in every case, but the relevant
factors are weighed against each other in order to determine what a
reasonable person in the position of the plaintiff would have done.
 [page 263]

Probability that harm would occur if care not taken

11.51 In assessing the probability that the harm would occur if care was
not taken, it must be kept in mind that just because a risk is foreseeable it is
not necessarily probable. A risk that is probable may mean that the defendant
needs to take greater care. However, if the probability is very low, it may be
that a reasonable person would not take any precautions at all. For example,
in Bolton v Stone [1951] AC 850, the plaintiff was hit by a cricket ball as she
stood in front of her house. The ball came from the cricket ground across the
road which was fenced. The evidence was that it was an exceptional hit that
caused the ball to leave the grounds; in 30 years, balls had rarely been hit out.
Another neighbour gave evidence that balls had come onto his premises five
or six times in previous years. The court held that the duty of care had not
been breached. The probability of a ball causing injury was so slight that a
reasonable person would not think taking any further precautions other than
the fence would be required.
In University of Wollongong v Mitchell (2003) Aust Torts Reports ¶81-708,
the plaintiff was injured when she sat down on a seat in a theatre that had
retracted. Giles JA referred to the frequency of such incidents (at [34]):
There were 438 seats in the theatre, all tip up seats. The seats had been installed in 1990, and
apart from the respondent’s injury there have been no reports of incidents to the appellant.
Identical seats had been installed in the Hoyts Cinemas chain in 1989–90. There were 10,604
seats. The calculated usage of each seat was 1,490,074 times. There had only been one report of
injury.

However, in Jandson Pty Ltd v Welsh [2008] NSWCA 317, the lack of
evidence of any previous injury in relation to steps in a display home did not
mean that the risk was not foreseeable and that the defendant occupier should
have taken reasonable steps to prevent injury. In Romeo v Conservation
Commission (NT) (1998) 192 CLR 431; 151 ALR 263 at [128], Kirby J stated,
‘an occupier is not entitled to ignore safeguards against dangers because of
the absence of past mishaps, it is equally true that years of experience without
accidents may tend to confirm an occupier’s assessment that the risks of harm
were negligible’.

11.52 In considering the probability, the focus is on the probability of the

harm — not the conduct that leads to the harm. In Roads and Traffic
Authority of New South Wales v Dederer (2007) 234 CLR 330; 238 ALR 761,
the respondent was injured when he dived off a bridge into a channel. The
evidence was that, for many years, children and adults had been seen jumping
and diving from the bridge. However, until the respondent was injured there
had been no accidents. The respondent knew that the water level varied and,
due to tidal action, the course of the channel altered. The New South Wales
Court of Appeal referred to the ‘startling frequency’ of ‘large numbers’ of
people that did jump and dive from the bridge: Great Lakes Shire Council v
Dederer; Roads and Traffic Authority of New South Wales v Dederer (2006)
Aust Torts Reports ¶81-860 at [214] per Ipp JA. However, the High Court
held that the Appeal Court had focused on the probability of the conduct, not
the risk. Gummow J stated (at [61]):
Such a characterisation incorrectly focused attention on the frequency of an antecedent course
of conduct, namely jumping and diving, and not on the probability of the risk of injury
occurring

[page 264]

as a result of that conduct, namely impact in shallow water. As Lord Porter observed in Bolton v
Stone, “in order that the act may be negligent there must not only be a reasonable possibility of
its happening but also of injury being caused” [emphasis added] [[1951] AC 850 at 858; [1951] 1
All ER 1078 at 1080–1]. In the present case, the frequency of jumping and diving was only
startling if one ignored the fact that no one was injured until Mr Dederer’s unfortunate accident.
Far from being a risk with a high probability of occurrence, the probability was in truth very
low, and this fact was masked by the Court of Appeal’s characterisation of the relevant risk.

Likely seriousness of the harm

11.53 For the likely seriousness of the harm, often referred to as
magnitude or gravity, the courts assess the seriousness of the foreseeable
potential injury. The greater the possible harm, the greater precautions may
be expected from the reasonable person.

11.54 The fact that the magnitude of the harm is very serious does not
equate to a breach of duty. It is merely one of the factors to be taken into
account. This was pointed out in Roads and Traffic Authority of New South
Wales v Dederer (2007) 234 CLR 330; 238 ALR 761 at [274], where Callinan J
stated:
As to “magnitude”, I accept that diving from a height of 8–10 m was itself a risky activity. It was
for this reason that it was discouraged by police and officials, banned and the subject of the
pictograph signs. But even so, and despite flagrant defiance of the ban, not one out of the many
who had dived in the 40 or so years that had elapsed since the construction of the bridge had
been injured, so far as anyone could recall, let alone severely injured. This is to say that the risk,
although undisputedly present, had a very low degree of probability of realisation. And although
the first respondent’s injuries were grave, that is, of great magnitude, seemingly minor mishaps
can sometimes cause grave injuries.

11.55 In assessing the seriousness of the harm, the courts may consider the
possibility of a greater injury to the plaintiff due to some characteristic of the
plaintiff. Paris v Stepney Borough Council [1951] AC 367; 1 All ER 42 involved
the special susceptibility of the particular plaintiff who was a one-eyed worker
who would become totally blind if his remaining good eye was injured. Lord
Morton of Henryton stated:
In considering generally the precautions which an employer ought to take for the protection of
his workmen, it must, in my view, be right to take into account … the likelihood of an accident
happening and the gravity of the consequences … [I]f A and B, who are engaged on the same
work, run precisely the same risk of an accident happening, but if the results of an accident will
be more serious to A than to B, precautions which are adequate in the case of B may not be
adequate in the case of A, and it is the duty of the employer to take such additional precautions
for the safety of A as may be reasonable. The duty to take reasonable precautions against injury
is one which is owed by the employer to every individual workman: at AC 385–6; All ER 51.

11.56 The time for assessing the risk in terms of probability and
seriousness is the time of the injury: Roe v Minister of Health [1954] 2 QB 66.
This may be particularly difficult to assess in an area of evolving knowledge,
especially in technical areas, including medicine.

[page 265]

In Roe v Minister of Health, the two plaintiffs went into hospital for a
minor operation. They were each given the spinal anaesthetic nupercaine,
contained in sealed glass ampoules which were stored in a solution of phenol
to sterilise them. After the operation, the plaintiffs were found to have spastic
paraplegia caused by the presence of phenol in the anaesthetic injected into
each spine. The phenol had contaminated the nupercaine through invisible
cracks in the glass ampoules and, as a result, the plaintiffs were paralysed
from the waist down. They sued the anaesthetist, alleging that he had been
negligent by failing to take steps to ensure that the nupercaine was
contamination-free. Both the trial judge and the Court of Appeal held that the
defendant had not been negligent according to the standard of medical
knowledge in 1947, the time of the accident. At that date, no one knew of the
possibility of contamination of nupercaine by phenol in this way. Denning LJ
commented (at 83–4):
[The anaesthetist] sought to escape the danger of infection by disinfecting the ampoule. In
escaping that known danger he unfortunately ran into another danger. He did not know that
there could be undetectable cracks, but it was not negligent for him not to know it at that time.
We must not look at the 1947 accident with 1954 spectacles.

In H v Royal Alexandra Hospital for Children (1990) Aust Torts Reports

¶81-000, the plaintiff had been diagnosed as a haemophiliac in 1980, when he
was six. He was given blood transfusions at the defendant hospital in March
1982 and September 1983. One of those transfusions infected the plaintiff
with the human immunodeficiency virus (HIV). After being infected with
HIV, the plaintiff contracted AIDS and sued the hospital (among others),
alleging that it had been negligent by not adequately screening for HIV in the
samples of blood it received from the blood bank.
 The first case of AIDS in Australia was not diagnosed until April 1983. At
first, it was not understood that HIV could be contracted from blood
transfusions. A test for detecting the HIV virus in blood was not developed in
the United States until late 1984, and licensed for general use only in May
1985.
The Supreme Court of New South Wales held that the defendant hospital
had not been negligent in respect of the transfusion given in March 1982, but
it had been negligent in respect of the transfusion given in September 1983.
Badgery-Parker J held in relation to the earlier transfusion:
It is therefore quite impossible for the plaintiff to succeed on the basis that in and before March
1982 [the defendant] ought to have foreseen and guarded against the risk that the plaintiff
might, through Factor VIII therapy, become infected with, specifically, the agent causing the
outbreak of immune deficiency illnesses in homosexuals. The most that the evidence establishes
is that there was in March 1982 … a foreseeable risk that recipients of blood products would
become infected with blood borne viruses as yet unknown and unidentified: at 67,528.

In relation to the later transfusion, Badgery-Parker J stated (at 67,529):

The first Australian case of AIDS was published in April 1983. I have no difficulty in concluding
that reasonably informed physicians, scientists and blood transfusion services in this country
ought to have been well aware by at latest April 1983 that there was a real risk that among the
unknown and unidentified sources of infection which blood and blood products had the
capacity to carry must be numbered whatever agent was responsible for the production of AIDS.

[page 266]

Burden of taking precautions to avoid the harm

11.57 The presence or absence of practical precautions available to the
defendant is a significant factor in determining breach of the standard of care
and often leads to the most debate. The plaintiff must establish what
precautions were available to the defendant and prove that by failing to take
such precautions the defendant failed to act reasonably. In considering
precautions it must be questioned whether the precaution was available at the
time of the breach and whether the precaution is reasonable.
11.58 Judged as at time of breach The precautions must be available at
the time of the breach and therefore the precautions must be assessed as at
the time of the alleged breach of duty, not with hindsight: Thornton v Sweeney
(2011) 59 MVR 155 at [131]; Vairy v Wyong Shire Council (2005) 223 CLR
422; 221 ALR 711 at [126]; Neindorf v Junkovic (2005) 222 ALR 631 at [93].

11.59 Reasonable precaution The reasonableness of the precaution will

be assessed in light of all of the circumstances. For example, if the risk of
injury is slight then instruction may be sufficient: House v Forestry Tasmania
(1995) Aust Torts Reports ¶81-331 (involving pruning trees). Erecting signs
to warn of danger may be considered a reasonable precaution. In Roads and
Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; 238 ALR
761, the respondent argued that the sign, a pictograph depicting diving from
the bridge as prohibited, was not sufficient as it did not actually warn of any
danger. The trial judge, Dunford J, agreed, holding that a sign that brought
the danger to the attention of the respondent would ‘probably have inhibited
him from diving, particularly if it inhibited large numbers of others from
doing likewise and so tended to break the culture or practice which had
developed’: Dederer v Roads and Traffic Authority (2005) Aust Torts Reports
¶81-792 at [70]. Ipp JA of the Court of Appeal stated that the signs were ‘in a
word, useless’ and that the appellant should:
… have ascertained whether the pictograph signs were proving effective. On that basis, the
[appellant] ought to have known that they were not: Great Lakes Shire Council v Dederer; Roads
and Traffic Authority of New South Wales v Dederer (2006) Aust Torts Reports ¶81-860 at [219]
and [220].

The High Court, however disagreed, stating:

The trial judge and the majority in the Court of Appeal impermissibly reasoned that if a warning
is given, and if the conduct against which that warning is directed continues notwithstanding
the warning, then the party who gave the warning is shown to have been negligent by reason of
the warning having failed. Quite apart from its inconsistency with the scope of the [appellant’s]
duty of care, this reasoning erroneously short-circuits the inquiry into breach of duty that is
required by Shirt …

Even reasonable warnings can “fail”, but the question is always the reasonableness of the
 warning, not its failure: (2007) 234 CLR 330; 238 ALR 761 at [55]–[56].

11.60 In considering whether the precaution is reasonable, note is taken of

the burden of taking the precaution. The court has regard to the expense,
difficulty and convenience of using them: Caledonian Collieries Ltd v Speirs
(1957) 97 CLR 202; Australian Iron & Steel Ltd

[page 267]

v Krstevski (1973) 128 CLR 666; 2 ALR 45; Wyong Shire Council v Shirt (1980)
146 CLR 40; 29 ALR 217.
In Romeo v Conservation Commission (NT) (1998) 192 CLR 431; 151 ALR
263, the plaintiff fell over a cliff in a reserve that was managed by the
defendant. The plaintiff argued that the cliff should have been fenced and
signed. The majority of the court held that a reasonable authority would not
have fenced the two kilometres of cliff, evaluating the expense in light of the
fact that the risk was of such low probability due to the fact that the cliffs were
an obvious danger. See also Vairy v Wyong Shire Council (2005) 223 CLR 422;
221 ALR at [91].

11.61 The inability of the defendant to afford the precautions does not
render the precautions unreasonable: PQ v Australian Red Cross Society
[1992] 1 VR 19. However, it may be relevant if the defendant did not create
the risk but is under a duty to take precautions in relation to the risk. This
was illustrated in Goldman v Hargrave [1967] 1 AC 645, where a gum tree on
the defendant’s property was struck by lightning and was ignited. It was
impossible to put the fire out while the tree was standing because of the
height of the fire. The defendant cleared a space around the tree and
dampened the surrounding area with water. The next day a tree-feller was
sent to the defendant’s land by the district fire control officer by which time
the tree was burning fiercely. The tree was cut down, but the defendant failed
to take any steps to put the fire out with water, as he took the view that the
best method of extinguishing a fire of this kind was to let it burn itself out.
Three days after the tree had been cut down, a strong wind blew up and the
temperature rose to about 40°C. The fire in the tree reignited and spread to
neighbouring land, causing extensive damage. The neighbours sued the
defendant, alleging that he had been negligent in failing to take steps to put
out the fire after the tree had been felled.
On appeal from the High Court, the Privy Council held that the defendant
had been negligent. On the standard of care expected of the defendant in
these circumstances, Lord Wilberforce (delivering the opinion of the Privy
Council) stated (at 663):
[T]he law must take account of the fact that the occupier … has, ex hypothesi, had this
hazard/thrust upon him through no seeking or fault of his own. His interest and his resources,
whether physical or material, may be of a very modest character either in relation to the
magnitude of the hazard, or as compared with those of his threatened neighbour. A rule which
required of him in such unsought circumstances in his neighbour’s interest a physical effort of
which he is not capable, or an excessive expenditure of money, would be unenforceable and
unjust. One may say in general terms that the existence of a duty must be based upon knowledge
of the hazard, ability to foresee the consequences of not checking or removing it, and the ability
to abate it.

11.62 Failing to warn is a common allegation of breach, and is arguably an

easy and inexpensive precaution to give a warning of a risk: Roads and Traffic
Authority of New South Wales v Dederer (2007) 234 CLR 330; 238 ALR 761.
However, sometimes the risk is an obvious risk and the court may find that a
reasonable person would not think it necessary to give a warning. In Woods v
Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; 186 ALR 145 at [159], the
majority of the High Court held that there was no breach in the standard of
care by failing to warn the players of indoor cricket of the increased risk of
eye injury as it was an obvious risk.

11.63 Legislation has clarified the precaution of giving warnings in

particular situations, such as where the risk is obvious. The civil liability
legislation provides that the defendant
 [page 268]

does not owe a duty to a plaintiff to warn of an obvious risk. ‘Obvious risk’ is
defined as a risk that, in the circumstances, would have been obvious to a
reasonable person, including risks that are patent or a matter of common
knowledge: Civil Liability Act 2002 (NSW) ss 5F, 5H; Civil Liability Act 2003
(Qld) ss 13, 15; Civil Liability Act 1936 (SA) ss 36, 38; Civil Liability Act 2002
(Tas) ss 15, 17; Civil Liability Act 2002 (WA) ss 5M, 5O. There is no
equivalent provision in the Australian Capital Territory, Northern Territory
or Victorian legislation.
If the plaintiff argues failure to warn as a negligent act, the defendant may
establish the risk in question was an obvious risk and may avoid liability:
Angel v Hawkesbury City Council (2008) Aust Torts Reports ¶81–955 at [83].
The test to determine whether a risk is an obvious risk is an objective one,
asking whether the risk was obvious to a reasonable person in the position of
the plaintiff: Glad Retail Cleaning Pty Ltd v Alvarenga (2013) 86 NSWLR 191
at [61]; Collins v Clarence Valley Council [2015] NSWCA 263.
In Schultz v McCormack [2015] NSWCA 330 at [85], it was suggested that
as the provision ‘cuts across of the scope of the duty of care’ it is appropriate
to consider after concluding there is a duty of care and that the scope of that
duty includes the relevant risk of harm. See also Collins v Clarence Valley
Council [2015] NSWCA 263 at [120]–[122] and Chapter 13.

11.64 Other considerations in respect of precautions In considering the

precautions that a reasonable person would take, the risk of injury is not to be
considered in isolation; it must be considered as part of all similar risks of
harm that must be avoided: Civil Law (Wrongs) Act 2002 (ACT) s 44(a); Civil
Liability Act 2002 (NSW) s 5C(a); Civil Liability Act 2003 (Qld) s 10(a);
Wrongs Act 1958 (Vic) s 49(a). See also Romeo v Conservation Commission
(NT) (1998) 192 CLR 431; 151 ALR 263.
11.65 The fact that the risk could have been avoided by doing something
in a different way does not in itself give rise to liability: Civil Law (Wrongs)
Act 2002 (ACT) s 44(b); Civil Liability Act 2002 (NSW) s 5C(b); Civil
Liability Act 2003 (Qld) s 10(b); Civil Liability Act 2002 (Tas) s 12(a); Wrongs
Act 1958 (Vic) s 49(b). The plaintiff must establish that the method adopted
by the defendant was unreasonable in the circumstances and that a more
reasonable method existed.
In Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; 194 ALR
337, the plaintiff contracted hepatitis A after consuming contaminated
oysters. It was alleged that the distributor of the oysters had been negligent by
either not withholding the oysters from sale or not giving a warning of the
risk of contamination. It was acknowledged that a duty of care was owed to
ensure that the oysters were safe for human consumption. The High Court
had to consider how a reasonable producer would respond to the foreseeable
risk of contamination. In this case, the contamination occurred due to rain
flushing heavy concentrates of faecal matter into the lake where the oysters
were grown.
The plaintiff argued that the distributor should not have harvested the
oysters until a sufficient period had passed so that the risk of contamination
was minimal. This would have required the source of the pollution to be
identified, a task that was beyond the power of the distributor. McHugh J
stated (at [110]–[111]):

[page 269]

The notion that the Barclay companies should have gone to the expense of doing these things
and closing down its business in the meantime sounds like a counsel of perfection rather than a
reasonable response to a risk of injury that had a low degree of probability of occurring.

… it had only two realistic alternatives to what it did. It could have closed down indefinitely
until the “sufficient period” elapsed or it could give a warning notice. Given the very low degree
of probability of the risk occurring, it was not unreasonable for the Barclay companies to resume
 harvesting when they did. No doubt the magnitude of the risk, if it eventuated, was high. But so
are the magnitudes of many risks that reasonable people run because the alternative is too costly
or too inconvenient. The magnitude of the risk of being involved in a motor car accident is very
high, and the risk could be minimised, if not eliminated, by no car ever travelling at more than
10 km per hour. But few would contend that travelling at 10 km per hour was the only
reasonable response to the risk of a motor car accident.

It was held by the High Court that there had been no breach of the
standard of care. See also Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; 201
ALR 139 at [36]. In Lynch v Shooters Saloon Bar Pty Ltd [2006] QCA 326, the
appellant was injured when he stepped over rope that was being used as a
barrier outside a nightclub. Evidence was that there was a safer alternative of
a belt as is commonly used in airports. The Court of Appeal upheld the
findings of the trial judge, holding that the respondent was not in breach of its
duty of care by using the rope barrier instead of the belt system. Referring to
the decision of the trial judge, McMurdo P stated (at [13]–[14]):
The trial judge rightly observed that the expert’s evidence did not contain a persuasive or
detailed comparison of the risks associated with these two alternatives. He said that it was
difficult to conclude that the suggested alternative “would have presented a significantly lower
overall risk of injury”. He was unpersuaded that the alternative was of such a low overall risk as
to require a reasonable person in the defendant’s position to have used it.

He accepted that the alternative system was no more expensive. And clearly it was an alternative
which was widely used. But the appellant simply failed to prove that it was such a preferable
option that any reasonable person must have used it. I see no error in that conclusion. The trial
judge was not compelled to find negligence by the evidence of a witness whose opinion was that
the alternative had some advantage over this barrier. He did not have to accept that evidence,
and indeed it offered an opinion on a question which required no specialised knowledge. Some
case could be made for each system against the other. But the defendant was not negligent for
using this one. The question is not whether the appellant’s accident might have been avoided
with the use of the other system, because the respondent’s duty of care required it to act
reasonably to avoid the risk of injury to all persons using this area. A reasonable occupier might
have thought that there was not more risk overall from a barrier of these ropes.

11.66 If a defendant introduces precautions after an accident, evidence of

the introduction is admissible and often leads to a conclusion that such
precautions were practicable prior to the accident: Jellie v Commonwealth
[1959] VR 72; Nelson v John Lysaght (Aust) Ltd (1975) 132 CLR 201; 5 ALR
289; Ryan v Electricity Trust of South Australia (No 1) (1987) 47 SASR 220.
However, subsequent risk abatement procedures do not necessarily amount
to an admission that the defendant had breached the duty of care earlier: Civil
Law (Wrongs) Act 2002 (ACT) s 44(c); Civil Liability Act 2002 (NSW) s
5C(c); Civil Liability Act 2003 (Qld) s 10(c); Civil Liability Act 2002 (Tas) s
12(b); Wrongs Act 1958 (Vic) s 49(c). See also

[page 270]

Ryan v Electricity Trust of South Australia (No 1); Caledonian Collieries Ltd v
Speirs (1957) 97 CLR 202.

Social utility of risk-creating activity

11.67 The social utility of a defendant’s conduct, or justifiability, is
relevant in determining whether the standard has been breached: Daborn v
Bath Tramways Motor Co Ltd [1946] 2 All ER 333 (an ambulance during
wartime); Watt v Hertfordshire County Council [1954] 2 All ER 368 (the
standard of equipment supplied to fire officers); Marshall v Osmond [1983]
QB 1034 (a police officer seeking to make an arrest).
In Watt v Hertfordshire County Council, the English Court of Appeal held
that the end justified the means without breach of duty when a vehicle was
used by a fireman to transport an unsecured heavy jack less than 300 metres
to free a woman trapped under a heavy vehicle. One of the firemen was
injured when the jack fell on him. The risk involved was not so great as to
prohibit the attempt to save a life.
The position is summed up in the words of Denning LJ (at 371):
It is well settled that in measuring due care you must balance the risk against the measures
necessary to eliminate the risk. To that proposition there ought to be added this: you must
balance the risk against the end to be achieved. If this accident had occurred in a commercial
enterprise without any emergency there could be no doubt that the servant would succeed. But
 the commercial end to make profit is very different from the human end to save life or limb. The
saving of life or limb justifies taking considerable risk.

In Commonwealth v Winter (1993) 19 MVR 215, a police sergeant setting

up a roadblock to stop a motorcyclist seeking to evade police capture was held
liable to the motorcyclist for his inherently hazardous manoeuvre,
notwithstanding the proper objective of apprehending a dangerous vehicle. In
Kretschmar v Queensland (1989) Aust Torts Reports ¶80-272, the court held
that there was no breach of duty in the adequately supervised game with
handicapped children and that the utility of the game in developing skills and
team spirit outweighed the risk of injury to the participants.

11.68 Courts appear to be broadening the concept of social utility since the
civil liability legislation: Southern Properties (WA) Pty Ltd v Executive
Director of Department of Conservation and Land Management (2012) 42
WAR 287 at [257]. In Harris v Bulldogs Rugby League Club Ltd (2006) Aust
Torts Reports ¶81-838 at [60], the New South Wales Court of Appeal did not
record any disagreement with the trial judge’s observation that ‘attending
football matches serves a useful social purpose for a considerable number of
people’. In Bader v Jelic [2011] NSWCA 255, the respondent was injured
when he stumbled and fell through a floor to ceiling glass plate window next
to a front door. The court found that ‘it can be said that there was some
“social utility of the activity that creates the risk of harm” as having the
window, and the view beyond, unobscured by a blind would no doubt usually
be preferable from an aesthetic point of view to a cloaking of the window’: at
[40]. In Wilson v Nilepac Pty Ltd (t/as Vision Personal Training) (Crows Nest))
[2011] NSWCA 63, the plaintiff, a 40-year-old barrister seeking to get fit, was
injured when exercising with a medicine ball under the supervision of his
personal trainer. The trial judge accepted that

[page 271]
physical exercise had some social utility and that it could be assumed that it
was reasonable to take fewer precautions when the activity involved social
utility. The Court of Appeal disagreed, stating (at [130]):
There is nothing in the Ipp Report or in the text of the [civil liability] legislation … which
suggests that the standard of reasonable care requires the taking of fewer precautions against an
acknowledged risk of harm simply because the activity which creates that risk has some social
utility. There may be cases where the social utility of the activity is sufficiently high as to justify,
notwithstanding other factors, a finding that a reasonable person would not have taken the
necessary precautions against the identified risk of harm. Rescuing people from the impact of
floods, cyclones and earthquakes were said to be examples that might attract such a finding. But
in my view the present case does not fall into that or any similar category.

See also Hill v Richards [2011] NSWCA 291 at [50], where sheep shearing
was linked briefly to social utility.

Customary standards
11.69 Courts will consider evidence of what is the customary standard
used for the activity in question. Usual practice adopted by those engaged in
the same activity as the defendant will not itself determine the standard of
care, since the usual practice may fall short of the objective standard required
by law: Mercer v Commissioner for Road Transport and Tramways (NSW)
(1936) 56 CLR 580; Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR
460; 186 ALR 145. As McHugh J stated in Dovuro Pty Ltd v Wilkins (2003)
215 CLR 317 at [34], ‘[c]ompliance with common practice is powerful, but
not decisive, evidence that the defendant did not act negligently’.
In Mercer v Commissioner for Road Transport and Tramways (NSW), the
defendant’s tram crashed when the driver collapsed at the controls, resulting
in the plaintiff being injured. The plaintiff argued that the defendant had
acted unreasonably in failing to guard against the danger of a driver’s collapse
by installing a device known as a ‘dead man’s handle’ to cut off the motor
automatically. The defendant adduced expert evidence that such a device was
not in use in any other tramway system. Nevertheless, the High Court held,
by majority, that the defendant was liable in negligence for failing to fit such a
device. Rich, Evatt and McTiernan JJ stated (at 593–4):
… it was suggested that no jury should be permitted to say that the ordinary methods adopted
by those in the same business as the defendant can constitute negligence on the defendant’s part.
But, as had been clearly pointed out, “the general practice itself may not conform to the standard
of care required of a reasonably prudent man. In such a case it is not a good defence that the
defendant acted in accordance with the general practice …”. Accordingly, reference to present
practice in other tram systems is necessarily of less significance.

11.70 Thompson v Smiths Shiprepairers (North Shields) Ltd [1984] QB 405

also demonstrates how customary standards may not be accepted by the court
as reasonable. The plaintiffs were shipyard workers who had suffered
progressive hearing loss from working in the defendants’ shipyards for over
40 years. The defendants did not provide the plaintiffs with hearing
protection until around the mid-1970s. The evidence established that it was

[page 272]

not common practice in the shipbuilding industry to provide workers with

such hearing protection until around that time. Nevertheless, Mustill J held
that a reasonable employer in the defendants’ position would have provided
hearing protection from at least 1963, and possibly before, because, by 1963,
the reasonable shipyard employer would have been aware that exposure to
noise could cause progressive hearing loss.
In Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; 186 ALR
145, the evidence was that it was not the custom to wear a helmet for indoor
cricket and the rules of the game discouraged the wearing of helmets. This
was taken into account by the High Court when assessing whether the
respondent was in breach of its duty for failing to provide helmets to players.

Professional standards
11.71 Under the common law, evidence of standards within a particular
profession is not conclusive as to the relevant standard in an action of
negligence: Naxakis v Western General Hospital (1999) 197 CLR 269; 162
ALR 540; Rogers v Whitaker (1992) 175 CLR 479; 109 ALR 625; Florida Hotels
Pty Ltd v Mayo (1965) 113 CLR 588 at 593, 601.
Therefore, the fact that the defendant conformed to usual professional
conduct does not necessarily mean they had acted in accordance with the
standard of care required by the law: Naxakis v Western General Hospital
(1999) 197 CLR 269; 162 ALR 540 at [21]. However, evidence of accepted
professional practice is relevant. In Rosenberg v Percival (2001) 205 CLR 434;
178 ALR 577 at [7], Gleeson CJ held that although the standard of care was a
matter for the courts to decide and not the medical profession itself, ‘[i]n
many cases, professional practice and opinion will be the primary, and in
some cases it may be the only, basis upon which a court may reasonably act’.
See also, Hookey v Peterno (2009) 22 VR 362 at [108], where the court
stated:
… in Australia the standard of care to be observed by a skilled professional is that of the
ordinary skilled person exercising and professing to have that special skill. But that standard is
not determined solely or even primarily by reference to the practice followed or supported by a
responsible body of opinion in the relevant profession; even though, in the area of diagnosis and
treatment, it will often have an ‘influential, [often a decisive], role to play’: Rogers v Whitaker
(1992) 175 CLR 479 at 489; 109 ALR 625 at 633.

11.72 The civil liability legislation in some jurisdictions allows evidence of

accepted practice to prove that the standard of care owed by the professional
has not been breached (the professional standards provisions). Section 22(1)
of the Civil Liability Act 2003 (Qld) provides:
A professional does not breach a duty arising from the provision of a professional service if it is
established that the professional acted in such 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 practice.

See also Civil Liability Act 2002 (NSW) s 5O; Civil Liability Act 2003 (Qld)
s 22; Civil Liability Act 1936 (SA) s 42; Civil Liability Act 2002 (Tas) s 22;
Wrongs Act 1958 (Vic) s 59.
 [page 273]

There is no equivalent in the Australian Capital Territory and the Northern

Territory. In Western Australia there is no equivalent, but s 5PB of the Civil
Liability Act 2002 (WA) provides that a health professional is not negligent if
they acted in accordance with accepted competent professional practice.
As these are ‘no breach of duty’ provisions, they are considered to be
defences to a claim in negligence (Dobler v Halverson (2007) 70 NSWLR 151;
Mules v Ferguson [2015] QCA 5) and are considered in more detail in
Chapter 13. However, a plaintiff may still provide evidence of professional
standards, particularly if professional opinion as to competent practice is
divided. In such circumstances, a plaintiff would provide evidence that the
defendant failed to meet the professional standards and the defendant would
provide their evidence that their conduct met professional standards as a
defence under the professional standards provision.

11.73 The professional standards provisions are similar to the Bolam

principle. In Bolam v Friern Barnet Hospital Management Committee [1957] 2
All ER 118; 1 WLR 582, the English court held that a doctor will not be held
negligent if he or she acts in accordance with a practice accepted at the time
as reasonable by a responsible body of medical opinion, even though other
doctors would adopt a different practice. Therefore, in England, professional
standards in medical negligence cases were evidence of the standard to be
applied by the court. In Bolitho v City and Hackney Health Authority [1998]
AC 232 at 243; [1997] 4 All ER 771 at 779, it was held by the House of Lords
that the Bolam principle applies unless ‘in a rare case, it can be demonstrated
that the professional opinion is not capable of withstanding logical analysis’.
The Australian High Court, however, rejected the application of the Bolam
principle in Rogers v Whitaker (1992) 175 CLR 479; 109 ALR 625.

11.74 Advice and warnings The professional standards provisions in the

civil liability legislation do not apply to liability arising in connection with the
giving, or failing to give, a warning, advice or information: Civil Liability Act
2002 (NSW) s 5P (risk of death or injury to a person); Civil Liability Act 2003
(Qld) s 22(5); Civil Liability Act 2002 (Tas) s 22(5); Wrongs Act 1958 (Vic) s
60. The exceptions contained in the New South Wales and South Australian
legislation are particularly directed at warning, advice and information in
respect of personal injury or death by a professional. Therefore, medical or
health professionals in providing their services cannot avoid liability by
establishing that they had acted in a manner that was accepted as competent
practice at the time if the alleged breach of duty is a failure to warn of a risk.

11.75 The civil liability legislation of Queensland and Tasmania

specifically provide for doctors and the duty to warn of risks. Under the
legislation, the duty to inform consists of two parts — the proactive and
reactive duty. The proactive duty to inform is the duty to inform a patient of
material risks; however, there are no guidelines as to what information should
be given by the medical practitioner in order to avoid liability in negligence.
The reactive duty to inform is that a medical practitioner must take
reasonable care to provide information of inherent risks of the treatment that
the practitioner knows, or ought to know, the patient would attach
significance to. This would mean that a patient should be informed of risks
that would be obvious to a reasonable person.

[page 274]

Section 21(1) of the Civil Liability Act 2003 (Qld) states:

A doctor does not breach a duty owed to a patient to warn of risk before the patient undergoes
any medical treatment (or at the time of being given medical advice) that will involve a risk of
personal injury to the patient, unless the doctor at that time fails to give or arrange to be given to
the patient the following information about the risk —
(a) information that a reasonable person in the patient’s position would, in the
circumstances, require to enable the person to make a reasonably informed decision
 about whether to undergo the treatment or follow the advice;
(b) information that the doctor knows or ought reasonably to know the patient wants to
be given before making the decision about whether to undergo the treatment or follow
the advice.

See s 21 of the Civil Liability Act 2002 (Tas). These provisions leave the
decision of Rogers v Whitaker (1992) 175 CLR 479; 109 ALR 625 intact; it is
for the court to decide whether advice should have been given to the patient
or not.

11.76 Although the Western Australian legislation provides a Bolam-type

principle in respect of health professionals (see 13.89), there is no equivalent
to the Queensland and Tasmanian provisions concerning a doctor’s duty to
warn of a risk. However, s 5PB(2) of the Civil Liability Act 2002 (WA)
provides that s 5PB(1), which provides that there is no liability if the health
professional acts in accordance with widely accepted competent practice, does
not apply in relation to informing of a risk associated with proposed
treatment for a patient or a foetus being carried by a pregnant patient, or in
relation to a proposed procedure for the diagnosis of a patient or the foetus of
a pregnant patient.

11.77 The Queensland and Tasmanian provisions merely confirm the

High Court decision of Rogers v Whitaker (1992) 175 CLR 479; 109 ALR 625.
In Rogers v Whitaker, the court had to consider whether there was a breach of
the duty of care by failing to warn the plaintiff of risks associated with
surgery. In that case, the plaintiff lost the sight of her right eye when aged
nine. When she was 47 years old, the defendant ophthalmic surgeon operated
on the eye essentially for cosmetic reasons, although there was a chance that
sight could be restored to the eye. The plaintiff asked the defendant a number
of questions about possible complications affecting the eye being operated
upon but she did not ask about complications to her other eye. There was a
small risk (about one in 14,000) of sympathetic ophthalmia causing blindness
in the plaintiff’s good left eye. The defendant surgeon was aware of the risk
but he did not mention it to the plaintiff. As a result of the operation, the
plaintiff suffered sympathetic ophthalmia and was blinded in her good left
eye. She sued the defendant, alleging that he had been negligent in failing to
warn her of the risk of blindness. On the evidence, there was a body of
medical opinion to the effect that an ophthalmic surgeon should only advise a
patient of the risk of sympathetic ophthalmia if the patient specifically asked
about the possibility of a risk to the good eye as a result of the operation on
the bad eye.
The High Court held that while the Bolam test might be appropriate in
cases of treatment, it should not be applied in cases involving advice or
information from doctor to patient. The majority (Mason CJ, Brennan,
Dawson, Toohey and McHugh JJ) commented (at CLR 486–7; ALR 630–1):

[page 275]

… that, even if a patient asks a direct question about the possible risks or complications, the
making of that inquiry would logically be of little or no significance; medical opinion
determines whether the risk should or should not be disclosed and the express desire of a
particular patient for information or advice does not alter that opinion or the legal significance
of that opinion … The existence of the shortcoming suggests that an acceptable approach in
point of principle should recognise and attach significance to the relevance of the patient’s
questions …

… [I]n the field of nondisclosure or risk and the provision of advice and information, the Bolam
principle has been discarded and, instead, the courts have adopted the principle that, while
evidence of acceptable medical practice is a useful guide for the courts, it is for the courts to
adjudicate on what is the appropriate standard of care after giving weight to ‘the paramount
consideration that a person is entitled to make his own decisions about his life’ [quoting F v R
(1983) 33 SASR 189 at 193].

Where information or advice about the risks in a proposed medical

procedure is concerned, the majority held (at CLR 490; ALR 633–4):
The law should recognise that a doctor has a duty to warn a patient of a material risk inherent in
the proposed treatment; a risk is material if, in the circumstances of the particular case, a
reasonable person in the patient’s position, if warned of the risk, would be likely to attach
significance to it or if the medical practitioner is or should reasonably be aware that the
particular patient, if warned of the risk, would be likely to attach significance to it.
 The plaintiff’s interest in the risk to her bad eye made it clear that she
would be even more concerned about possible complications affecting her
good eye. The High Court held that the defendant should have been aware
that the plaintiff would have regarded the risk of sympathetic ophthalmia as
material, and should have advised her of that risk, even though she did not
specifically ask about it.
If a doctor fails to provide advice as to a material risk of proposed
treatment, they will be in breach of their duty. See also Rosenberg v Percival
(2001) 205 CLR 434; 178 ALR 577; Wallace v Kam (2013) 250 CLR 375; 297
ALR 383.

Statutory standards
11.78 Statutory provisions sometimes prescribe standards for activities
and, in certain limited cases, a breach of that statutory standard may give rise
to a separate cause of action in tort for breach of statutory duty: see Chapter
18. However, evidence of a breach of a statutory standard is not conclusive of
a breach of the standard of care in negligence, but may provide evidence of
breach: Tucker v McCann [1948] VLR 222; Sibley v Kais (1967) 118 CLR 424
at 427. For example, it may not be sufficient for a plaintiff to show that the
defendant was in breach of road traffic regulations to establish breach of duty
in negligence as it may be negligent for a driver to rely on the performance by
others of their statutory duties: Sibley v Kais (1967) 118 CLR 424; Versic v
Conners (1969) 90 WN (NSW) (Pt 1) 331; see also Anderson v Enfield City
Corporation (1983) 34 SASR 472, where failure to comply with regulations
was accepted as evidence of negligence on the part of a manufacturer.
In Tucker v McCann [1948] VLR 222, the plaintiff pillion passenger on a
motorcycle sued the defendant driver of a motor car. The plaintiff was injured
when the defendant’s car collided with the motorcycle at a traffic intersection.
The plaintiff alleged that the defendant had breached the road traffic
regulations by approaching the intersection too quickly. At first instance,
 [page 276]

the jury found that the defendant had not been negligent. The plaintiff
appealed against the verdict and argued that the defendant must have been
negligent if he had breached the road traffic regulations. By a majority of 2:1,
the Full Court of the Supreme Court of Victoria upheld the jury’s verdict.
Herring CJ (with whom Lowe J agreed) stated the principle as follows:
Now it is the duty of everyone to know and to obey the law, and so to know and obey the
precautions laid down in the regulations. And prima facie a reasonably prudent man will take
them. And whenever a person is under a duty to someone else to take care, his failure to take
those precautions or any of them is a matter that must be taken into account in determining the
question whether he has or has not exercised due care. But this question is one of fact to be
determined in the light of all the circumstances, and a breach of the regulations is only one of
such circumstances. Such a breach must, therefore, be considered along with all the facts of the
case, it cannot be considered in vacuo as it were. It is thus no more than a piece of evidence of
want of reasonable care … Circumstances may be conceived in which obedience to the
regulations may as a matter of prudence be the very worst course to take, for example, where to
disobey may avoid injury or save life. In other words, it is for the jury to say whether the
precaution laid down by the regulation which the defendant failed to take, was one that in all the
circumstances of the case a reasonably prudent man would have taken. It is for them to decide
for themselves as a matter of fact the standard of care that was appropriate in the circumstances:
at 225.

In Fatur v IC Formwork Services Pty Ltd (2000) 155 FLR 70, the defendant
employer was in breach of the Scaffolding and Lifts Regulations 1912 (NSW).
Miles CJ held (at [19]):
Breach of a statutory provision prescribing a standard of safety is prima facie evidence of a
failure to take a step which would minimise the risk of harm to a person likely to be injured as a
result of such failure. In this sense the failure to comply with the statutory standard can be
pleaded as a particular of negligence as appears to have been done in the plaintiff’s statement of
claim. However, such a breach does not constitute negligence unless it involves conduct which
can be condemned as unreasonable (O’Connor v SP Bray Ltd (1937) 56 CLR 464).

See also Francis v Lewis [2003] NSWCA 152 (a plaintiff injured on stairs
that complied with statutory standards but defendant found liable in
negligence); Ridis v Strata Plan 10308 [2005] NSWCA 246 (breach of
statutory duty as occupier did not impose liability in negligence).
 In Fox v Hack [1984] 1 Qd R 391, the plaintiff injured his back at work
while engaged in repetitive lifting of building blocks weighing about 28 kg. He
sued his employer, alleging that it had been negligent in failing to provide a
reasonably safe system for the moving of the blocks. The industrial award
governing the plaintiff’s employment provided that no employee should be
required to lift a building block in excess of 45 lb (20.45 kg) without a
mechanical aid or assistance from another employee. Carter J (at 393–4) held
the common law standard incorporated the industrial award standard:
I am satisfied … that such a provision which governs conditions of employment in the building
trade is admissible in a case such as this in much the same way as the provisions of the Code laid
down by the Standards Association of Australia (SAA) are admissible in civil actions between
master and servant. Such provisions are admitted not as ones having statutory force, although
some SAA Codes do have, but as evidence of what might be said to be a standard or norm of
behaviour reasonably required of an employer when involving his employee in a particular task.
In my opinion an industrial award made under the Industrial Conciliation and

[page 277]

Arbitration Act 1961–1981 (Qld) may be admitted on the same basis … The terms of the
relevant provision is clearly designed as a standard of behaviour to be expected of an employer
… The provision outlined in the Award is in my opinion a reasonable one and may be taken to
evidence a reasonable standard of care to be expected of an employer in the building trade.

Although Carter J suggested the Standards Association of Australia Code

may have similar influence as an industrial award, there are differences
between those Code provisions which are given statutory force and those
which are not, and only the former should be given persuasive weight and
admitted. Such a view was confirmed by the Full Court of the Supreme Court
of South Australia in Chicco v Corporation of City of Woodville (1990) Aust
Torts Reports ¶81-028.
In Merck Sharp & Dohme (Australia) Pty Ltd v Peterson (2011) 196 FCR
145; 284 ALR 1, it was held that complying with the manufacturing
obligations in the Therapeutic Goods Act 1989 (Cth) did not discharge the
manufacturer’s common law duty to exercise reasonable care in advising of
risks associated with the pharmaceuticals. The Federal Court held (at [161])
that there was:
… nothing unworkable or anomalous about such a manufacturer remaining under an obligation
to take reasonable steps to avoid loss or injury to the end user at the same time as being required
to comply with the regulatory system for which the [Therapeutic Goods Act 1989 (Cth)]
provided. The manufacturer’s obligation is not, in my view, exhausted upon compliance with
the statute — no more so than the motorist’s obligation to take care in the driving of his or her
vehicle is exhausted upon compliance with road traffic regulations: see Sibley v Kais (1967) 118
CLR 424 at 427; [1968] ALR 158 at 159.

11.79 Even non-binding material may be used as an indication of a

standard reasonably required. In Ascic v Westel Cooperative Ltd (1992) Aust
Torts Reports ¶81-159, it was held that other industrial awards not binding
on the parties could be taken into account. The plaintiff was employed by the
defendant as a bottle packer. She had to lift and carry crates of bottles
weighing up to 25 kg. Industrial awards governing other kinds of
employment specified that female employees should not be required to lift
weights of more than 16 kg at any one time, but there was no provision in the
award governing the plaintiff’s employment. Citing Fox v Hack [1984] 1 Qd R
391, the trial judge took those other industrial awards into account in
determining what the reasonable employer would or would not have required
the plaintiff to do, and held the defendant liable in negligence. On appeal, the
Full Court of the Supreme Court of Western Australia held that the trial judge
was entitled to take into account the weight limits set in other industrial
awards, even though they were not binding on the plaintiff and the defendant.

Anticipation
11.80 As a general rule, a defendant may assume that others will take
reasonable care of themselves. However, in some circumstances, defendants
are required to anticipate negligent, and perhaps even criminal, conduct of
others. For example, a train driver (Hale v Victorian Railway Commissioner
(1953) 87 CLR 529) or the driver of a vehicle (Sibley v Kais (1967) 118 CLR
424) need not slow down at a level crossing (in the case of a train driver) nor
slow down for vehicles on the left on approaching an intersection (driver of a
motor vehicle),

[page 278]

but each must keep a continuing watch for approaching traffic and slow
down or stop if it becomes apparent that it can be anticipated that a car is not
giving way. See also Robertson v B H Maclachlan Pty Ltd (1985) 58 ALR 668;
59 ALJR 409.

11.81 It is well established that a person who owes a duty of care to others
must take account of the possibility that one or more of the persons to whom
the duty is owed might fail to take proper care for his or her own safety and
that such persons fall within the foreseeable risk: McLean v Tedman (1984)
155 CLR 306 at 311–12; 56 ALR 359 at 362–3; Bus v Sydney County Council
(1989) 167 CLR 78 at 90; 85 ALR 577 at 585; March v Stramare (EMH) Pty
Ltd (1991) 171 CLR 506 at 519, 520, 536–7; Nagle v Rottnest Island Authority
(1993) 177 CLR 423 at 431.
It is particularly the case in the relationship of employer and employee that
the standard of care expected of the reasonable employer requires the
anticipation of negligent conduct on the part of employees. What might be
regarded by some as an extreme example is found in McLean v Tedman,
where the plaintiff garbage collector was injured when he was struck by a car
while he was running across a road carrying a rubbish bin on his shoulder.
The work practice adopted by the plaintiff and his fellow employees was for
the garbage truck to travel up one side of the road and for the garbage
collectors to collect rubbish bins from both sides, running across the road to
collect and return the bins on the other side. It would have been safer, but
slower, for the truck to have driven up one side of the road, then down the
other, as the garbage collectors would not then have been required to run
across the road. This preferred practice had been directed by the employer.
 The plaintiff sued his employer alleging that it had been negligent in failing
to provide its employees with a reasonably safe system of garbage collection.
The High Court held that the defendant had negligently failed to provide a
safe system of work. Mason, Wilson, Brennan and Dawson JJ held (at CLR
311–12; ALR 362–3):
Although running across the road was a means of doing the work which the [plaintiff] and other
employees chose or preferred, it was nevertheless a system of work of which … [the defendant]
was aware or ought to have been aware. And it was fraught with some degree of risk of injury to
employees in some circumstances, especially when an employee was crossing Albany Creek
Road when it was dark, as the [plaintiff] was doing on this occasion. The fact that the traffic was
very light no doubt lessened the risk of injury, though it may have induced an employee to take
less care for his own safety. However, there is simply no basis for saying that the risk of injury
was fanciful … or for brushing it aside because it was insignificant. It was a foreseeable and
significant risk inherent in the way in which the garbage was collected in Albany Creek Road
arising from the possibility of negligence on the part of motorists and negligence or
inadvertence on the part of the employee.

In such a situation it is not an acceptable answer to assert that an employer has no control over
an employee’s negligence or inadvertence. The standard of care expected of the reasonable man
requires him to take account of the possibility of inadvertent and negligent conduct on the part
of others.

… This was acknowledged even in the days when contributory negligence was a common law
defence … The employer is not exempt from the application of this standard vis-á-vis his
employees … the possibility that the employee will act inadvertently or without taking
reasonable

[page 279]

care may give rise to a foreseeable risk of injury. In accordance with well settled principle the
employer is bound to take care to avoid such a risk.

11.82 Sudden emergencies, particularly those brought on by the plaintiff,

are not necessarily circumstances that can reasonably be anticipated by a
defendant. This is particularly so in cases of motor vehicle accidents; for
example, in Government Insurance Office (NSW) v Sharah (1993) 19 MVR
279 at 281–2, Handley JA for the New South Wales Court of Appeal stated:
 Without wishing to place undue emphasis on estimates of distance made by witnesses in a
situation of sudden emergency, it is reasonably clear in my view that the action of the plaintiff in
stepping from out of behind the stationary vehicle into the kerbside lane without stopping and
looking to his left for approaching vehicles, had created a sudden emergency, which made the
accident inevitable, unless he could get out of the way, and that there was nothing in the time
and space available to the defendant’s insured driver, which would have enabled her to take
avoiding action …

There is a well recognised principle that the courts must be careful in assessing the conduct of
persons faced with a sudden emergency, and that principle applies in this case, so that it seems
to me it is impossible to conclude that the driver acted negligently once she was aware of the
emergency that confronted her.

The High Court in Derrick v Cheung (2001) 181 ALR 301 considered the
liability of a driver who was driving at a reasonable speed but injured an
infant who ran in front of the car. The trial judge of the District Court of New
South Wales had found the driver liable despite the evidence that the driver’s
speed (45–50 kilometres per hour) was well within the prescribed speed limit
(60 kilometres per hour). The trial judge stated (quoted by the High Court at
[9]):
The presence of houses and shops in the vicinity, taken in conjunction with the date (shortly
before Christmas), the day of the week (a Saturday) and the time of day (9.00 am), should have
alerted her to the possibility that a small child such as the [respondent] might be on or near the
road. The [appellant’s] emphasis in her evidence on the need, as she put it, to ‘look straight
ahead’ and her failure to realise that her view to the left was obscured suggest that she did not in
fact have this possibility in mind. This raises doubts about the validity of her belief, both at the
time of the accident and subsequently as conveyed in cross-examination, that she was travelling
at a safe speed. While her speed was some 10–15 kilometres per hour below the prevailing speed
limit, it was in fact high enough to give her very little time to stop in an emergency such as
actually occurred.

On appeal to the New South Wales Court of Appeal, reference was made to
the need for drivers to anticipate careless acts of pedestrians and the appeal
was dismissed: (1999) 29 MVR 351. The High Court, however, allowed the
appeal, holding that there was no basis upon which negligence of the driver
could be made: 181 ALR 301 at [13]. The fact that if the driver’s speed had
been slower by a few kilometres per hour the accident may not have occurred
was merely speculative. The driver had been exercising reasonable care in the
circumstances and, therefore, was not in breach of the standard of care.
See also Wensink v Marshall (2010) 56 MVR 20 (appellant could not
anticipate a child would suddenly appear at an intersection on a bicycle when
there was nothing to indicate the presence of children and the appellant was
driving at a modest speed and below the speed limit). In Roche v Kigetzis
(2015) 72 MVR 67, the respondent was hit by the appellant’s

[page 280]

car when walking across a pedestrian crossing against a red light. There was a
stationary bus in the right-hand through lane of the intersection that
obscured the respondent’s view of activity in front of the bus. The court held
that a reasonable driver should have anticipated the ‘real possibility of a
person being on the roadway within the intersection given the presence of the
stationary bus’: at [31].

Balancing the Factors

11.83 It is important to weigh all of the factors considered in the calculus
of negligence against each other in order to answer the question whether a
reasonable person in the position of the defendant would have taken
precautions. In Mulligan v Coffs Harbour City Council (2005) 221 ALR 764 at
[2], Gleeson CJ and Kirby J stated:
Reference is often made to the “Wyong Shire Council v Shirt calculus”. In that case, Mason J
referred to the way in which a tribunal of fact might determine what a reasonable person would
do by way of response to a foreseeable risk. As he made clear, he was describing a process of
factual judgment. He referred to such factors as the magnitude of the risk, the degree of
probability of its occurrence, the expense, difficulty and inconvenience of taking alleviating
action, and any other conflicting responsibilities of the defendant. These, he said, were matters
to be balanced out in making a judgment about reasonableness. The later use of the word
“calculus” to describe this passage is unfortunate. A calculus is a method of calculation. What is
 involved in the process to which Mason J was referring is not a calculation; it is a judgment.
[footnotes omitted]

11.84 In New South Wales v Fahy (2007) 232 CLR 486; 236 ALR 406 at
[57], the High Court again noted the unfortunate use of the phrase ‘calculus
of negligence’ and that the issue ‘requires a more elaborate inquiry that does
not focus only upon how the particular injury happened’.

11.85 This overarching requirement that the response of the reasonable

person is paramount has been reinforced by the civil liability legislation. For
example, s 9(1)(c) of the Civil Liability Act 2003 (Qld) states that there is no
breach of duty unless a reasonable person in the position of the defendant
would have taken the precautions: see also Civil Law (Wrongs) Act 2002
(ACT) s 43(1)(c); Civil Liability Act 2002 (NSW) s 5B(1)(c); Civil Liability
Act 1936 (SA) s 32(1)(c); Civil Liability Act 2002 (Tas) s 11(1)(c); Wrongs Act
1958 (Vic) s 48(1)(c); Civil Liability Act 2002 (WA) s 5B(1)(c).

11.86 It is the weighing up and balancing of the various factors that

results, ultimately, in determination of breach. Therefore, even if a plaintiff
proves a practical precaution was available to the defendant it is not
conclusive that a reasonable person would have adopted that precaution.
Similarly, the risk of harm may be very significant, but if the probability is
extremely low, a reasonable person may not have thought it necessary to have
taken precautions.
In Borland v Makauskas [2000] QCA 521, the Queensland Court of Appeal
held that the simple precaution of erecting signs to warn persons not to dive
into a canal from a residential property would not be considered as necessary
to a reasonable person in the circumstances. In Shaw v Thomas [2010]
NSWCA 169, the plaintiff was injured when he fell from a bunk bed that did
not have a guard rail or a ladder. The Court of Appeal held that failing to take
the precaution of either installing a guard rail or providing a ladder,
 [page 281]

when weighed against the low probability of harm occurring and the harm
unlikely to be serious, was not a breach of duty.
However, in other circumstances, a simple and inexpensive solution may
be considered to be reasonable even though the probability of harm is low:
Wyong Shire Council v Shirt (1980) 146 CLR 40; 29 ALR 217. For example, in
Miletic v Capital Territory Health Commission (1995) 130 ALR 591; 69 ALJR
675, the High Court held that the defendant had breached its duty of care by
failing to lubricate the castors on the beds in the nurses’ quarters in a hospital.

11.87 The High Court decision of Woods v Multi-Sport Holdings Pty Ltd
(2002) 208 CLR 460; 186 ALR 145 provides a good example of the balancing
process. The plaintiff was blinded in the eye during a game of indoor cricket
being played at the defendant’s facilities. The plaintiff sued in negligence,
alleging that the duty of care owed to him had been breached by the
defendant failing to supply him with proper eye protection and failing to
provide a sign warning of the dangers associated with the game.
By a narrow majority of 3:2, it was held that the defendant had not
breached its duty of care. In relation to the failure to provide eye protection,
the majority held that the risk of injury was low, based on the evidence of
serious eye injury in games of indoor cricket. As to the practicality of
providing eye protection, due to the nature of the game which involved
‘clashing’ between fielders and batters, the wearing of helmets would actually
increase the probability of injury. Evidence as to the customary standards was
that the Australian Indoor Cricket Federation discouraged the use of helmets,
and a player needed permission to wear one. It was not the practice of players
to wear helmets, nor for the organisers to supply protection.
The fact that there was an increased risk of injury in playing indoor cricket,
as opposed to outdoor cricket, did not require a warning of the increased risk.
The majority held that warning signs were not required by a reasonable
occupier of a sport facility as the risk of being hit by a ball during a game of
indoor cricket would be an obvious risk: at [159].
In dissent, Kirby and McHugh JJ held that the defendant was in breach.
Their Honours held that the defendant should have provided eye protection
due to the gravity of the potential harm, that is, blindness: at [79], [120]. Also,
it was noted that helmets were worn in other sports and had not caused
problems despite having protruding face guards. Their Honours also believed
that a warning was necessary as the increased risk of eye injury was not
obvious and, therefore, reasonable care required players to be warned of that
increased risk: at [80], [130].

4 Procedure and Proof

Functions of Judge and Jury
11.88 It is necessary to distinguish between questions of law and questions
of fact, particularly in actions in negligence where a jury may sit. In
negligence actions, the determination of the standard of care required in a
particular case is a question of law for the court: see 11.4. The question of
whether such standard has been breached is one of fact for the jury, or judge
sitting without a jury: see 11.34. Only a court’s decision on a question of

[page 282]

law can create a precedent; answers to questions of fact cannot: Swain v

Waverley Municipal Council (2005) 220 CLR 517; 213 ALR 249 at [140]; Bus v
Sydney County Council (1989) 167 CLR 78 at 88–9; 85 ALR 577 at 583–5.

11.89 The judge exerts control over the proceedings, as it is for the judge
to determine whether any facts have been established by evidence from which
negligence may reasonably be inferred. It is then for the jury to say how far
the evidence is to be believed and whether negligence ought to be inferred
from such evidence. In Metropolitan Railway Co v Jackson (1877) 3 App Cas
193 at 197 it was stated:
The judge has to say whether any facts have been established by evidence from which negligence
may be reasonably inferred; the jurors have to say whether from those facts when submitted to
them, negligence ought to be inferred.

11.90 A judge may withhold a case from the jury by deciding that the
plaintiff has failed to establish a prima facie case. Likewise, if the evidence
presented by the plaintiff is not sufficient to establish the elements of
negligence, the defendant may submit that there is no case to answer and, if
accepted, the action is dismissed: see 11.85. If the evidence given for the
plaintiff is equally consistent with the existence or non-existence of
negligence, it is the duty of the judge to refuse to allow the case to go to the
jury: Fitzgerald v Penn (1954) 91 CLR 268; National Coal Board v England
[1954] AC 403; Broadhurst v Millman [1976] VR 208.

11.91 A judge who has permitted a case to go to the jury should not then
direct the jury to find for the plaintiff, even if the judge believes that a verdict
to the contrary would be upset on appeal as unreasonable: Placer Exploration
Ltd v Misiorowski (1969) 43 ALJR 376; [1970] ALR 435; Dublin, Wicklow &
Wexford Railway Co v Slattery (1878) 3 App Cas 1155; Hocking v Bell (1947)
75 CLR 125. A trial judge is, however, entitled to make plain to the jury the
way the judge’s own mind is working, provided the judge also makes it clear
that the issues of fact are solely for them. In Willcox v Sing [1985] 2 Qd R 66,
the Full Court of the Supreme Court of Queensland endorsed the right of a
trial judge to comment to the jury that it should not lightly find against a
professional person facing a charge of negligence of such a character as to put
professional reputation and earning capacity at risk.

11.92 The division of functions between judge and jury has become less
important as jury trials have been abolished in many jurisdictions in respect
of negligence actions: see, for example, Civil Liability Act 2003 (Qld) s 73
(claims for personal injuries); Motor Accident Insurance Act 1994 (Qld) s 56.
Where there is no jury, the judge performs both the traditional function and
becomes the tribunal of fact as well. In such cases, the judge often will not
distinguish the different functions being performed and thereby sometimes
fails to distinguish clearly between decisions on questions of fact and law.

Appeals
11.93 In order for the verdict of a jury to be upset on appeal, it must have
been perverse, either because the jury disregarded evidence or because it
failed to appreciate the weight of the evidence: Commissioner for Railways v
Small [1957] ALR 529; Hocking v Bell (1947)

[page 283]

75 CLR 125. In Waverley Municipal Council v Swain (2002) Aust Torts

Reports ¶81-694, there was an appeal against the jury’s finding that the
appellant had breached its duty of care by failing to warn the respondent of
the existence of a sandbar between the flags erected on the beach. The New
South Wales Court of Appeal allowed the appeal, holding that there was no
evidence before the jury that justified its finding of breach: at 63,786. On
appeal to the High Court, a majority reversed the decision of the Court of
Appeal: Swain v Waverley Municipal Council (2005) 220 CLR 517; 213 ALR
249.

11.94 There are two additional grounds for setting aside a jury verdict
based on errors of law:
if the judge misdirected the jury (Ronald v Harper (1910) 11 CLR 63);
or
if the judge should not have allowed the case to go to the jury: Berwin v
 Donohoe (1915) 21 CLR 1.

11.95 In exercising its discretion to grant special leave to appeal, the High
Court has expressed the basis for considering errors of principle based on the
credibility of witnesses as follows:
In the ultimate analysis, the [plaintiff’s] case of negligence failed because the trial judge accepted
the [defendant’s] evidence denying that there was massive bleeding during the operation and his
evidence concerning the colour of the testicle and rejected the evidence of the [plaintiff] and his
family that he was in considerable pain. In the nature of things, appellate courts are extremely
reluctant to interfere with findings of fact based on a positive assessment of the credibility of a
witness. In general, they will do so only where the testimony of a witness is in conflict with facts
incontrovertibly established or it is glaringly improbable. That is not the case here: Daniels v
Burfield (1994) 125 ALR 33 at 34–5 per Mason CJ, Toohey and McHugh JJ.

See also Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550 at
[43].

11.96 In the case of an appeal from a judge sitting without a jury, an

appeal court is more likely to exercise a wider power of review, particularly in
relation to inferences drawn by the trial judge from the primary facts: Benmax
v Austin Motor Co Ltd [1955] AC 370; Commissioner of Main Roads v Jones
(2005) 79 ALJR 1104; 215 ALR 418. There have been expressions of
reluctance to interfere: Barwick CJ and Windeyer J in Da Costa v Cockburn
Salvage & Trading Pty Ltd (1970) 124 CLR 192; Edwards v Noble (1971) 125
CLR 296. However, some Australian courts are more liberal in interfering:
Warren v Coombes (1979) 142 CLR 531; 23 ALR 405. The High Court
affirmed a more liberal approach to interference in Commonwealth v
Introvigne (1982) 150 CLR 258; 41 ALR 577.
In Manley v Alexander (2005) 223 ALR 228; 80 ALJR 413, the respondent
was lying on a road in the early hours of the morning when he was struck by a
car driven by the appellant. The trial judge at first instance found that there
was no negligence, stating that there was ‘no evidence to justify the
conclusion that at the time the [appellant] was not keeping a proper lookout’:
at [6]. On appeal, the respondent was successful and was awarded damages.
The case then went on appeal to the High Court, the issue being whether a
court of appeal could take a substantially different view of undisputed facts
than that taken by the trial judge. A majority of the High Court dismissed the
appeal, stating that it was ‘well open’ for the Full Court of Western Australia
to have concluded that the appellant had failed to

[page 284]

exercise reasonable care when driving: at [14]. The court took into account
that the incident occurred at night, that there was a street light close to where
the respondent was lying, that the appellant had an uninterrupted view of the
road and that, for a few seconds just before the incident, the appellant had
been looking at the side of the road instead of the road itself: at [13]. In
contrast, Callinan and Heydon JJ (in dissent) held that the decision of the Full
Court could not be upheld as it ‘assumes that a motorist is not entitled to give
attention to a particularly and potentially dangerous emergency situation in
priority to an apparently benign one’: at [43]. The minority noted that the
trial judge accepted the appellant’s evidence in respect of the incident as
reliable and as it was extremely unlikely that a person would be lying on a
road in dark clothing and not move out of the way of an oncoming vehicle
with headlights on, it was reasonable for the appellant to focus on a
pedestrian on the side of the road who was potentially a peril: at [42]–[44].

Onus and Standard of Proof

11.97 The onus of proof is on the plaintiff to show that the standard of
care was breached by the defendant. The standard of proof required is the
normal civil standard of proof on the balance of probabilities: Maher-Smith v
Gaw [1969] VR 371. All that is necessary is a basis for reasonable inference:
Katsilis v Broken Hill Proprietary Co Ltd (1977) 18 ALR 181; 52 ALJR 189;
Kouris v Prospector’s Motel Pty Ltd (1977) 19 ALR 343. In TNT Management
Pty Ltd v Brooks (1979) 23 ALR 345 at 349; ALJR 267 at 269, Gibbs J stated:
Of course as far as logical consistency goes many hypotheses may be put which the evidence
does not exclude positively. But this is a civil and not a criminal case. We are concerned with
probabilities, not with possibilities. The difference between the criminal standard of proof in its
application to circumstantial evidence and the civil is that in the former the facts must be such
as to exclude reasonable hypotheses consistent with innocence, while in the latter you need only
circumstances raising a more probable inference in favour of what is alleged.

11.98 The plaintiff will have failed if the evidence is equally consistent with
the existence or absence of negligence: Maher-Smith v Gaw [1969] VR 371;
Fitzgerald v Penn (1954) 91 CLR 268; National Coal Board v England [1954]
AC 403. Likewise, where no inference of negligence can be drawn, the
plaintiff fails: West v Government Insurance Office (NSW) (1981) 148 CLR 62;
35 ALR 437.

11.99 Factual evidence includes inferences which may reasonably be

drawn: Host v Bassett (1983) 48 ALR 404; Millicent District Council v
Altschwager (1983) 50 ALR 173; Nominal Defendant v Puglisi (1984) 58 ALJR
474. An example is given in Chisholm v State Transport Authority (1987) 46
SASR 148, where the plaintiff sought damages for personal injuries received
when he was struck by a train. No direct evidence was given of the accident.
The plaintiff asked the court to infer negligence from evidence of the nature
of his injuries and from expert evidence that such injuries were compatible
with a possible explanation for the accident from which negligence could be
inferred. The Supreme Court held that the evidence was insufficient to
support an inference of negligence or breach of contract as the proven facts
were compatible with alternative explanations of equal degree of probability.

[page 285]

11.100 A defendant may seek to argue no case to answer at the conclusion

of a plaintiff’s case where there is an absence of evidence informing the issue
of breach of a duty owed by the defendant. For example, in Smith v
Retirement Benefits Fund Investment Trust (1994) Aust Torts Reports ¶81-
286, the trial judge accepted such a contention in a case where shopping
centre lift doors closed on the 65-year-old plaintiff, jamming her between
them; however, the Full Court of the Supreme Court of Tasmania allowed an
appeal.

11.101 In some jurisdictions, a submission of ‘no case to answer’ will

deprive the defendant of a right to call evidence. If the ‘no case to answer’
submission fails, the defendant may present evidence in rebuttal and it is then
for the jury to decide whether the defendant was negligent. The defendant
may elect not to adduce evidence, in which case the jury must decide whether
the defendant was negligent solely upon the evidence adduced by the plaintiff
and such reasonable inferences as may be drawn from such evidence.

Res Ipsa Loquitur (The Thing Itself Speaks)

11.102 The maxim res ipsa loquitur represents a rule of evidence under
which negligence may be inferred from evidence of the occurrence of the
thing itself: Byrne v Boadle (1863) 2 H & C 722; 159 ER 299 (a flour barrel fell
from an upper storey); Russell v London & South Western Railway (1908) 24
TLR 548; Fitzpatrick v Walter E Cooper Pty Ltd (1936) 54 CLR 200; Davis v
Bunn (1936) 56 CLR 246; Mummery v Irvings Pty Ltd (1956) 96 CLR 99;
Anchor Products Ltd v Hedges (1966) 115 CLR 493. If there is evidence
available to explain what has occurred, the principle may not be relied upon:
Mummery v Irvings Pty Ltd (1956) 96 CLR 99 at 122.
In Swick Nominees Pty Ltd v Leroi International Inc (No 2) (2015) 318 ALR
666; 48 WAR 376 at [160], it was explained (citing Schellenberg v Tunnel
Holdings Pty Ltd (2000) 200 CLR 121; 170 ALR 594 at [25]):
The process of reasoning which enables the drawing of an inference of negligence from the mere
occurrence of an event is only available if:
 (a) there is an absence of explanation of the occurrence that caused the injury;
(b) the occurrence was of a kind that, in the ordinary course of things, does not happen
without negligence; and
(c) the instrument or agency that caused the injury was under the defendant’s control.

11.103 The principle permits an inference of negligence being drawn, but

it does not necessitate such a finding: Davis v Bunn (1936) 56 CLR 246;
contrast Fitzpatrick v Walter E Cooper Pty Ltd (1936) 54 CLR 200.

11.104 In Australia, there is no shift in legal onus onto the defendant to

disprove the plaintiff’s case once the plaintiff claims res ipsa loquitur: Davis v
Bunn; Fitzpatrick v Walter E Cooper Pty Ltd; Mummery v Irvings Pty Ltd.
Nevertheless, in a restricted practical sense, there may be a shift in onus
because, although the defendant is not obliged in law to call evidence in
rebuttal, the defendant runs the practical risk that failure to call evidence may
lead to certain adverse inferences being drawn against him or her:
Government Insurance Office (NSW) v Best (1993) Aust Torts Reports ¶81-
210 at 62,096.

[page 286]

11.105 If a plaintiff adduces specific evidence of an act of negligence on

the part of the defendant, and such specific evidence is not sufficient to satisfy
the tribunal of fact of the defendant’s negligence, the plaintiff may still rely on
res ipsa loquitur and inferences to be drawn from the general nature of the
accident, that is, the adducing of positive evidence by a plaintiff does not
prevent the plaintiff from relying also upon the principle: Anchor Products
Ltd v Hedges (1966) 115 CLR 493.

11.106 Since the onus remains throughout on the plaintiff, the mere fact
that the circumstances of the accident are peculiarly within the knowledge of
the defendant is insufficient to relieve the plaintiff of giving some evidence of
negligence (Hampton Court Ltd v Crooks (1957) 97 CLR 367) or evidence
from which negligence may be inferred: Railway Commissioner v Corben
[1939] SR (NSW) 55.

11.107 Although it is not possible to formulate the general circumstances

in which a res ipsa loquitur case may occur, it can be said that it is always
necessary that the accident be of a kind which does not ordinarily occur
without negligence. For example, a barrel of flour does not ordinarily drop
from a warehouse without involving someone’s negligence: Byrne v Boadle
(1863) 159 ER 299.

11.108 If there is an ordinary explanation for the occurrence of injury

which does not bespeak negligence on the part of a defendant, it will be
sufficient to defeat a plaintiff’s plea of res ipsa loquitur. For example, in Daniel
v Anniversary Nominees Pty Ltd (1990) 9 SR (WA) 35, the plaintiff attended a
Christmas function with a number of fellow employees at the defendant’s
premises. The plaintiff slipped and fell on the dance floor. She alleged that it
was too slippery to dance upon or that the defendant was liable for providing
a slippery and dangerous floor, or had inadequately supervised the
preparation of the dance floor. The court held (at 41–2):
In order that the plaintiff may succeed upon its plea of res ipsa loquitur she must show that the
mere fact that the accident has occurred raises an inference of negligence against the defendant;
that notwithstanding an inability to establish the exact cause of the accident, the fact of the
accident by itself is sufficient in the absence of an explanation to justify the conclusion that most
probably the defendant was negligent and that its negligence caused the injury.

That I find is not here the case. An explanation for the plaintiff’s injury is that during the course
of a particular movement she slipped upon an admittedly slippery floor. It does happen,
particularly with leathersoled shoes. The plaintiff may or may not have slipped had she worn
chamois leathersoled and heeled shoes but the fact that she slipped is not a new experience
amongst dancers. The slipping does not however lead to an inference that the floor was too
slippery.

11.109 If there is no evidence and no such ordinary explanation, a court

will tend to favour the plaintiff. In Crook v Thyssen Mining Construction of
Australia Pty Ltd (1992) 9 SR (WA) 10, the plaintiff, working at the bottom of
a mine shaft near Kalgoorlie, was struck on the head and forearm by a falling
object. There was no evidence called to show how the object might have fallen
without negligence and the court held the plaintiff’s injuries were caused by
the defendant’s negligence.

[page 287]

Doval v Anka Builders Pty Ltd (1992) 28 NSWLR 1 involved injury to the
plaintiff foreman carpenter when he tripped during a 10-minute blackout on
a construction site. He relied upon res ipsa loquitur, but a majority of the New
South Wales Court of Appeal rejected the reliance. Clarke JA, with whom
Handley JA agreed, stressed (at 13):
It is not enough that the occurrence speaks of negligence generally. The evidence must go
further and demonstrate that the negligence which can be inferred from the occurrence is that of
the defendant or those for whom it is responsible.

His Honour concluded (at 15):

No attempt was made to establish that power was still being transmitted to the premises and
that there had been no failure beyond the perimeter of the building. All that was proved was that
the lights failed and remained out for ten minutes. While it is probably true that the [defendant]
could have explained what occurred at the critical time its failure to do so did not provide
evidence which filled in the gaps in the [plaintiff’s] case. In the result the [plaintiff’s] failure to
establish that the provision of electricity throughout the building was within the exclusive
control of the [defendant] leads to the conclusion that he failed to establish the occurrence of an
event from which negligence on the part of the [defendant] could be inferred.

See also Minogue v Rudd [2012] NSWSC 305, where the claim of res ipsa
loquitur was rejected by the court as the facts of the case as although the
plaintiff’s fall through an unfinished floor on a building site could have
involved negligence on the part of the defendant, it also could have involved
the plaintiff’s own conduct.

11.110 The res (or thing) must also permit the reasonable inference that
the ‘someone’ was the defendant and this is done normally by showing that
the defendant had the exclusive control of the res.
In Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121; 170 ALR
594, the appellant was injured at work while using a hand grinder and sued
the employer in negligence. At first instance, it was held that the principle of
res ipsa loquitur applied, but an appeal by the employer was successful before
the Full Court of the Western Australian Supreme Court. On appeal to the
High Court, it was held that the principle did not apply. Kirby J (at [121]–
[123]) observed about the principle:
This court has emphasised many times, and for over 60 years, that the maxim res ipsa loquitur
“should be regarded merely as an application of the general method of inferring one or more
facts in issue from circumstances proved in evidence” (Davis v Bunn (1936) 56 CLR 246 at 268).
In this respect, this court has not been alone. Judges elsewhere have been at pains to deny to the
maxim any ‘magic qualities’ (Roe v Minister of Health [1954] 2 QB 66 at 87 per Morris LJ). They
have expressed exasperation at the suggestion that the maxim amounts to a “principle”, or even
worse, a doctrine of law (Ballard v North British Railway Co [1923] SC 43 at 56). Lord Shaw of
Dunfermline remarked nearly 80 years ago that if it “had not been in Latin, nobody would have
called it a principle” ([1923] SC 43 at 56). Its invocation “is no substitute for reasonable
investigation and discovery” (McDonal v Smitty’s Super Valu Inc 757 P 2d (1988) 120 at 125).
Nor does it “relieve a plaintiff too uninquisitive to undertake available proof” (757 P 2d (1988)
120 at 125).

As these reasons demonstrate, despite the foregoing criticisms, in Australia as in other

countries, the maxim has proved most resilient. Doubtless this is because its brevity expresses a
vivid idea

[page 288]

which may occasionally promise hope to a plaintiff who, through no fault of his or her own, is
unable to establish exactly what caused the damage said to be the result of the defendant’s want
of care in respect of matters wholly or largely within the knowledge and control of the
defendant.

An advantage of abolishing the maxim would be that it might release judicial minds from the
encrustations of authority that have gathered around the maxim and its multitude of attempted
applications over the 130 years of its existence. But even if, in this case, res ipsa loquitur, as such,
were overthrown and the facts analysed by reference solely to ascertaining the inferences
 available from the facts as found, this would make no difference. The position would remain the
same. The attempts at specific explanations of the disengagement of the air hose and the grinder
coupling would remain rejected. The possibility that the disengagement occurred for other
reasons not alleged would still be, as the primary judge described them, “speculative”. The
question would come back to whether, in this context, the tribunal of fact was justified in
inferring that it was more probable than not that the hose and coupling were insecurely
fastened. That inference would remain just one of many possibilities. Selection of it as more
probable than not would be as impermissible if no Latin maxim were invoked as it is if the
established jurisprudence of res ipsa loquitur was applied.

In Metrolink Victoria Pty Ltd v Auspro Logistics Pty Ltd (2008) 49 MVR
350, the respondent’s truck collided with a railway bridge, causing
interruption to the appellant’s tram service and other incidental damage. The
court rejected the claim of res ipsa loquitur as the appellant failed to adduce
sufficient evidence to establish that such an accident ‘does not ordinarily
occur in the absence of negligence by the driver of the vehicle which collided
with the bridge’: at [25]. See also Lafranchi v Transport Accident Commission
(2006) 14 VR 359; Barrak Corp Pty Ltd v Kara Group of Companies Pty Ltd
[2014] NSWCA 395.
Res ipsa loquitur was established in SJ Weir Ltd v Bijok (2011) 112 SASR
127, as the court accepted the appellant’s negligent excavations on land
adjoining the respondents’ led to subsidence and the damage to the
respondents’ property. In Potts v Frost (2011) 59 MVR 267, the plaintiff and
defendant were on a motorbike which left the road and hit a tree, leaving both
parties paraplegics. The court held that the evidence from the scene of the
accident ‘put the case in a category of the kind of occurrence which does not
ordinarily occur without negligence. That evidence makes the inference of
negligence a more likely explanation. It is more consistent with negligence
than with an innocent cause’: at [48].

11.111 There are some special situations in which it has been suggested
that even in cases not involving res ipsa loquitur, a burden of proof is placed
upon the defendant to prove some matter:
1. There is questionable English authority that injury resulting from a
 defect in a vehicle or machine in the exclusive control of the
defendant casts upon the defendant the burden of proof of proper
maintenance: Pearce v Round Oak Steel Works Pty Ltd [1969] 1
WLR 595; Henderson v Henry E Jenkins & Sons [1970] AC 282.
2. The burden of proving the partial defence of contributory
negligence is clearly upon the defendant: Butterfield v Forrester
(1809) 11 East 60; 103 ER 926.

[page 289]

3. A burden of proof is cast upon bailees to show that the loss or

damage to goods bailed was not due to their negligence: Hobbs v
Petersham Transport Co Pty Ltd (1971) 124 CLR 220.

Further Reading
R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis
Butterworths, Sydney, 2013, Ch 8.
H Luntz, D Hambly, K Burns, J Dietrich and N Foster, Torts: Cases and
Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2012, Ch 3.

1 M Davies and I Malkin, Focus — Torts, 6th ed, LexisNexis Butterworths, 2012, [3.5].
2 Commonwealth of Australia, Review of the Law of Negligence — Final Report (the Ipp Report),
October 2002, available at
<http://www.treasury.gov.au/ConsultationsandReviews/Reviews/2002/Review-of-the-Law-of-
Negligence>.
[page 291]
 Chapter 12

Damage — Causation and Scope

1 Introduction
12.1 In Tabet v Gett (2010) 240 CLR 537; 84 ALR 292 at [109], Kiefel J
stated the well-established principle:
Damage is an essential ingredient in an action for negligence; it is the gist of the action
[Williams v Milotin (1957) 97 CLR 465 at 474; [1957] ALR 1145]. The action developed largely
from the old form of action on the case, in which it was the rule that proof of damage was
essential to a plaintiff’s case [see W Prosser, Handbook of the Law of Torts, 2nd ed, West,
Minnesota, 1955, p 165; G Williams and A Hepple, Foundations of the Law of Tort, 2nd ed,
Butterworths, London, 1984, p 60]. In Brunsden v Humphrey [(1884) 14 QBD 141 at 150] Bowen
LJ pointed out that in certain classes of case the mere violation of a legal right imports damage,
but that principle was “not as a rule applicable to actions for negligence: which are not brought
to establish a bare right, but to recover compensation for substantial injury”. Generally speaking
“there must be a temporal loss or damage accruing from the wrongful act of another, in order to
entitle a party to maintain an action on the case” [Williams v Morland (1824) 2 B & C 910 at
916;107 ER 620 at 622], referred to in Brunsden at 150 per Bowen LJ]. Negligence in the abstract
will not suffice [Hay or Bourhill v Young [1943] AC 92 at 116; [1942] 2 All ER 396 at 408–9 per
Lord Porter; Haynes v Harwood [1935] 1 KB 146 at 152].

See also Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391 at [251] and
Alcan Give Pty Ltd v Zabic (2015) 325 ALR 1.

12.2 When referring to the damage element of the negligence action, it is

more than simply identifying that the plaintiff suffered some form of loss.
The element requires consideration of the following issues:
whether the loss suffered by the plaintiff is a kind of damage
recognised by the law;
whether the defendant’s breach caused the plaintiff’s loss (factual
 causation); and
whether it is appropriate to hold the defendant responsible for the
plaintiff’s loss (scope of liability).

[page 292]

12.3 In relation to the elements of negligence, it is the damage element

which, as recommended by the Ipp Report,1 the civil liability legislation
(except in the Northern Territory) has modified the most. However, decisions
of the High Court have indicated dissatisfaction with the common law
approach to causation and the court’s interpretation of the civil liability
provision may bring the common law and the statutory approach into
alignment. The common law approach remains relevant due to the exceptions
of the civil liability’s application. For example, depending upon the
jurisdiction, the legislation does not apply to an injury that is:
a dust-related condition;
the result of smoking or the use of other tobacco products or exposure
to tobacco smoke; or
an injury for which workers’ compensation is payable.
See Civil Law (Wrongs) Act 2002 (ACT) s 41; Civil Liability Act 2002
(NSW) s 3B; Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 4;
Civil Liability Act 2003 (Qld) s 5; Wrongs Act 1936 (SA) s 4; Civil Liability
Act 2002 (Tas) s 3B; Wrongs Act 1958 (Vic) s 45; Civil Liability Act 2002
(WA) ss 3A and 6.

2 Recognised Kind of Damage

12.4 Since damage is the gist of a negligence action, the plaintiff’s damage
must be non-minimal and of a kind recognised by law. The law recognises
property damage, personal injury, including pure psychiatric injury, and
economic loss, be it consequential or pure economic loss.

12.5 While the term ‘damage’ is traditionally used to describe the subject
matter of the third element of negligence, there are alternative terms which
may be used, for example ‘loss’, ‘injury’ and ‘harm’: Harriton v Stephens
(2004) 59 NSWLR 694 at [41]–[42] per Spigelman CJ.

12.6 Under the civil liability legislation, the term ‘harm’ is used in
preference to that of ‘damage’ and is defined as meaning ‘harm of any kind’
including personal injury or death, damage to property and economic loss.
See Civil Law (Wrongs) Act 2002 (ACT) s 40; Civil Liability Act 2002
(NSW) s 5; Civil Liability Act 2003 (Qld) Sch 2; Civil Liability Act 1936 (SA) s
3; Civil Liability Act 2002 (Tas) s 9; Wrongs Act 1958 (Vic) s 43; Civil
Liability Act 2002 (WA) s 3.

Damage Not Recognised at Law

12.7 In Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391 at [219], it
was noted:
The phrase “legally cognisable” is used here to mean “capable of being known or recognised for
the purposes of judicial proceedings”.

[page 293]

12.8 Sometimes courts have denied recovery for some kinds of damage on
the basis that no duty of care is owed or that the damage was ‘too remote in
law’ rather than simply categorise the damage as not being of a kind
recognised at law. Nevertheless, as the High Court decisions in Cattanach v
Melchior (2003) 215 CLR 1; 199 ALR 131 and CSR Ltd v Della Maddalena
(2006) 80 ALJR 458 demonstrate, there will be situations where the manner in
which the case is argued will require a determination as to whether the kind
of damage is recognised in the context of the damage element of the action. In
CSR Ltd v Della Maddalena, a workplace injury case, the nature of the appeal
to the High Court required, inter alia, the court to determine whether, as a
matter of evidence, the plaintiff had established that he suffered from a
compensable kind of damage or injury: see, for example, Callinan and
Heydon JJ at [197].
Ultimately, however, whether recognition of the kind of damage is
determined as part of the duty, or as part of the damage element, the decision
will be underpinned by similar common law principles, rules and policy
considerations, especially the fear of indeterminate liability.

Loss associated to illegal activities

12.9 Where the damage consists of the termination of benefits flowing
from criminal or fraudulent activities, the law does not recognise the loss as a
compensable form of damage based upon policy grounds. In Meadows v
Ferguson [1961] VR 594, the plaintiff claimed damages for personal injury,
including lost wages. For the relevant period the plaintiff was a clerk to a
starting-price bookmaker — an unlawful activity. The court held (at 598):
… the plaintiff, had he not been injured, would have continued in his employment by [the
bookmaker], and that the earnings of which the plaintiff was deprived during his 12 weeks’
incapacity were those which he would have received for aiding and abetting [the bookmaker] in
his business, which plainly was unlawful. I am, therefore, of opinion that the plaintiff’s award of
special damages should include no sum in respect of loss of wages.

The non-recognition of this kind of damage has been consistently

acknowledged as being based upon policy grounds: Royal Baking Powder Co v
Wright, Crossley & Co (1900) 18 RPC 95; Le Bagge v Buses [1958] NZLR 630;
Mills v Baitis [1968] VR 583; Burns v Edman [1970] 2 QB 541; State Rail
Authority of New South Wales v Wiegold (1991) 25 NSWLR 500.

Loss unable to be quantified

12.10 If the loss claimed by the plaintiff is too vague to be capable of
recognition, the law will not recognise the damage: Roberts v Roberts (1864) 5
B & S 384; 122 ER 874 (expulsion from a social club held to be too vague).

Wrongful life
12.11 In Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391 (Harriton),
the plaintiff’s claim was based upon the fact that the doctor had negligently
failed to diagnose and inform the plaintiff’s parents that she was likely to be
born with severe disabilities. The mother was able to prove that she would
have terminated the pregnancy if she had been informed of the consequences
of having rubella in the first trimester of her pregnancy.

[page 294]

In Waller v James; Waller v Hoolahan (2006) 226 CLR 136; 226 ALR 457
(Waller), the defendants had failed to detect a genetic defect prior to carrying
out the IVF procedure which resulted in the birth of the child. If the parents
had known that there was a 50 per cent chance that the child would be born
severely disabled, due to a genetic defect carried by the father, the parents
would not have proceeded with the conception of the child using the father’s
sperm, or the mother would have been tested during the pregnancy to
determine if the foetus was carrying the genetic defect.

12.12 In both Harriton and Waller, the primary issue for the High Court
was whether life itself, albeit a profoundly disabled life, can be recognised as a
form of damage. By a 6:1 majority in both cases, it was held that damage or
harm for which the plaintiffs claimed compensation was not recognised for
the purposes of a duty of care in a negligence action. Crennan J, who wrote
the leading judgment, said in Harriton (at [251]–[252]):
Because damage constitutes the gist of an action in negligence, a plaintiff needs to prove actual
damage or loss and a court must be able to apprehend and evaluate the damage, that is the loss,
 deprivation or detriment caused by the alleged breach of duty. Inherent in that principle is the
requirement that a plaintiff is left worse off as a result of the negligence complained about,
which can be established by the comparison of a plaintiff’s damage or loss caused by the
negligent conduct, with the plaintiff’s circumstances absent the negligent conduct. … A
comparison between a life with disabilities and nonexistence, for the purposes of proving actual
damage and having a trier of fact apprehend the nature of the damage caused, is impossible.
Judges in a number of cases have recognised the impossibility of the comparison and in doing so
references have been made to philosophers and theologians as persons better schooled than
courts in apprehending the ideas of nonbeing, nothingness and the afterlife. [footnotes omitted]

12.13 When the parent is the plaintiff instead of the child (wrongful birth),
the additional costs of raising a disabled child, over and above those of raising
a healthy child, have been recognised in Australia by the Queensland Court of
Appeal in Veivers v Connolly [1995] Qd R 326. The doctor negligently failed
to advise the plaintiff that she had contracted rubella during the first trimester
of her pregnancy, with the result that the child was born severely disabled.
The mother was successful in a negligence action against the doctor on the
basis that, if she had been advised of the true situation, she would have legally
terminated the pregnancy. In England, a similar decision was given in
Parkinson v St James and Seacroft University Hospital NHS Trust [2001] 3 All
ER 97 (CA).

12.14 Negligence for wrongful conception (mother would not have

conceived but for negligence of defendant) involves claims for damages to
compensate for the costs associated with raising the child. Unlike the damage
in wrongful life, such loss may be compensated by the law. In Cattanach v
Melchior (2003) 215 CLR 1; 199 ALR 131, the respondents sued the appellant
for the negligent performance of a tubal ligation that resulted in the birth of a
healthy but unwanted child. The High Court found in favour of the
respondents. The damage was identified by McHugh and Gummow JJ (at
[67]):
… the relevant damage suffered by the Melchiors is the expenditure that they have incurred or
will incur in the future, not the creation or existence of the parent-child relationship. If, for
example,
 [page 295]

their child had been voluntarily cared for up to the date of trial, they could have recovered no
damages for that part of the child’s upbringing. And, if it appeared that that situation would
continue in the future, then the damages they would be able to recover in the future would be
reduced accordingly.

Damage was not in issue as the court could quantify the costs associated
with raising a child.
After that decision, provisions were enacted in New South Wales,
Queensland and South Australia to prevent a court awarding damages for
economic loss resulting from rearing and maintaining a child or any loss of
earnings associated with the rearing or maintenance of the child: Civil
Liability Act 2002 (NSW) s 71; Civil Liability Act 2003 (Qld) s 49A; Civil
Liability Act 1936 (SA) s 67.

Grief etc
12.15 The law does not recognise general anxiety or vexation (Calveley v
Chief Constable of Merseyside Police [1989] AC 1228; 1 [1998] All ER 1025) or
emotional disturbance that does not manifest as some recognised psychiatric
injury: Leonard v Pollock [2012] WASCA 108.

12.16 In Coates v Government Insurance Office of New South Wales (1995)

36 NSWLR 1, the distinction between grief and recognised psychiatric illness
was in issue. The appellants were the children of a victim of a motor vehicle
accident caused by the driver insured by the respondent. The court held that
the appellants had not suffered a psychiatric illness and therefore their claim
in negligence could not succeed. Clarke JA stated (at 21):
Although the grief in both cases appeared intense at times and of relatively long duration I do
not think it can be said that the trial judge was wrong to conclude that the appellants had not
established the existence of the injury necessary to sustain their claims.

12.17 The fear of developing a disease that has an extended incubation

period is not a recognised form of damage — the disease must manifest itself
to be actionable. However, if that fear is the starting point for the
development of some form of psychoneurosis, or a psychosomatic illness
which causes the plaintiff to suffer a psychiatric illness, that may be
compensable: CSR Ltd v Della Maddalena (2006) 80 ALJR 458 at [198] per
Callinan and Heydon JJ, citing Windeyer J in Mount Isa Mines Ltd v Pusey
(1970) 125 CLR 383 at 394. See also Gifford v Strang Patrick Stevedoring Pty
Ltd (2003) 214 CLR 269; 198 ALR 100; J & K Clothing Pty Ltd v Mahmoud
[2004] NSWCA 207.

Loss of chance
12.18 In Rufo v Hosking (2004) 61 NSWLR 678, the New South Wales
Court of Appeal discussed whether the loss of a better medical outcome could
be claimed as damage in a medical negligence case. The court was of the
opinion that if the plaintiff could prove on the balance of probabilities that
there was a chance of a better outcome and that on the balance of
probabilities they would have elected to have that chance, they could be
compensated for that loss of chance: see [40].

[page 296]

12.19 At the time of the decision of Rufo v Hosking, there had been no
consideration of the issue by the High Court. The High Court took the
opportunity to determine the issue in Tabet v Gett (2010) 240 CLR 537; 265
ALR 227. The court held (at [50]) that:
… in an action in tort where damage is the gist of the action, the issue which precedes any
assessment of damages recoverable is whether a lost opportunity, as a matter of law, answers the
description of “loss or damage” which is then compensable.

In that case, the six-year-old appellant was admitted to hospital suffering

from headaches and vomiting. A provisional diagnosis was made and two
days later, while still in hospital, the appellant was unresponsive so a lumbar
puncture was ordered. The next day a CT scan and EEG were carried out
which revealed that the appellant was suffering from a brain tumour that had
been there for two years. She underwent an operation but suffered irreversible
brain damage. The appellant did not allege that the treatment or operation
was negligent. Instead it was claimed that the negligence was the failure to
carry out a CT scan earlier and that this failure led to the appellant suffering
the loss of a better medical outcome. All members of the High Court were of
the opinion that to recognise loss of a better outcome, independent of any
physical injury, as actionable damage, would require a radical change in the
law of negligence: see Crennan J at [102].
Note the comment of Gummow ACJ at [27], that may leave open the
possibility of loss of chance being compensated in a case where causation can
be established, unlike in Tabet v Gett:
… this outcome will not require acceptance in absolute terms of a general proposition that
destruction of the chance of obtaining a benefit or avoiding a harm can never be regarded as
supplying that damage which is the gist of an action in negligence.

12.20 In Hotson v East Berkshire Area Health Authority [1987] AC 750, the
House of Lords held that it was for the plaintiff to prove, on the balance of
probabilities, that the negligence of the defendant materially contributed to
the damage suffered and not to the loss of the chance to avoid that damage.
See also Gregg v Scott [2005] 2 WLR 268 and Chappel v Hart (1998) 195 CLR
232; 156 ALR 517 at [6]–[10].

3 Factual Causation
12.21 Damage is often the result of a complex set of conditions and to
satisfy the causation stage of the damage element, the plaintiff must be able to
show that the defendant’s act or omission was causally related to the injury or
damage suffered by the plaintiff. For example, in Barnett v Chelsea and
Kensington Hospital Management Committee [1969] 1 QB 428, there was no
dispute that the defendant hospital had failed to provide the plaintiff’s
husband with medical treatment after he became ill from drinking tea
containing arsenic. Despite the defendant’s acknowledged breach of its duty
of care, the fact that the husband would have died anyway, even with medical
treatment, meant that the plaintiff’s action failed since she could not establish
a causal link between the defendant’s breach and her husband’s death.

[page 297]

Common Law Tests

12.22 At common law, various tests were developed to determine factual
causation. The tests arose from the need to circumvent the common law rule
that any negligence on the part of the plaintiff was a complete defence to the
plaintiff’s claim. The tests included:
the directness test;
the ‘last opportunity’ test;
the ‘but for’ test; and
the ‘common sense and experience’ test.
With the enactment of the civil liability legislation, the test of factual
causation is now the ‘necessary condition’ test. However, the more recent
common law tests remain relevant, as the High Court has stated that the civil
liability legislation test is the ‘statutory statement of the “but for” test of
causation’: Strong v Woolworths Ltd (t/as Big W) (2012) 246 CLR 182; 285
ALR 420 at [18]; Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; 260
ALR 628 at [55].

The ‘but for’ test

12.23 The ‘but for’ test requires the court to ask: on the balance of
probabilities, would the plaintiff have suffered this damage, but for the
defendant’s negligence? If the court finds that the damage would have
occurred regardless of the defendant’s negligence, then the defendant’s
negligence will be found not to be a cause of the plaintiff’s damage. As Hayne
J commented in Pledge v Roads and Traffic Authority (2004) 205 ALR 56; 78
ALJR 572 at [15], the value of the test is that, in most cases, its use will
identify ‘the role which a particular act or omission played in the occurrence
of an event’.

12.24 In Strong v Woolworths Ltd (t/as Big W) (2012) 246 CLR 182; 285
ALR 420 at [18], the High Court stated:
While the value of that test [the “but for” test] as a negative criterion of causation has long been
recognised, two kinds of limitations have been identified. First, it produces anomalous results in
particular cases, exemplified by those in which there is more than one sufficient condition of the
plaintiff’s harm. Secondly, it does not address the policy considerations that are bound up in the
attribution of legal responsibility for harm. [footnotes omitted]

12.25 One of the cases to recognise the limitations of the test was March v
E & MH Stramare Pty Ltd (1991) 171 CLR 506; 99 ALR 423, where it was
noted that the ‘but for’ test provides no indication as to when an antecedent
cause of the damage will be regarded by the courts as being a legally
significant cause of the plaintiff’s damage. As Deane J commented (at CLR
523; ALR 435):
… the mere fact that something constitutes an essential condition (in the “but for” sense) of an
occurrence does not mean that, for the purposes of ascribing responsibility or fault, it is properly
to be seen as a “cause” of that occurrence as a matter of either ordinary language or common
sense. Thus, it could not, as a matter of ordinary language, be said that the fact that a person had
a head was a “cause” of his being decapitated by a negligently wielded sword notwithstanding
that possession of a head is an essential precondition of decapitation … the question whether

[page 298]

conduct is a “cause” of injury remains to be determined by a value judgment involving ordinary

notions of language and common sense.
12.26 See McHugh J’s comment in the medical negligence case of Chappel
v Hart (1998) 195 CLR 232; 156 ALR 517 at [48], where his Honour, in the
minority of 3:2, concluded that the defendant’s failure to warn his patient of
the risks of the operation ‘was no more causative of the [injury] than were his
medical qualifications’. The evidence was that the operation was performed
without negligence, but the respondent would not have undergone the
operation if she had been warned of the risks. However, she would have had
to have undergone the operation at some stage, but would have sought the
most experienced surgeon available. The majority held that the doctor’s
failure to warn contributed to the harm and the doctor was therefore liable.
Honoré analyses this decision and concludes:
Dr Chappel violated Mrs Hart’s right to choose for herself, even if he did not increase the risk to
her. Judges should vindicate rights that have been violated if they can do so consistently with the
authority of statutes and decided cases. In this case the High Court did just this, in effect by
making Dr Chappel, when he operated on Mrs Hart, strictly liable for any injury he might cause
of the type against which he should have warned her. For Dr Chappel did cause the harm that
Mrs Hart suffered, though not by the advice he failed to give her. He did so by operating on her
and, though he operated with due care, he slit open her oesophagus with disastrous
consequences. Morally he was responsible for the outcome of what he did.2

The ‘common sense and experience’ test

12.27 The limitations of the ‘but for’ test led to the development of the
‘common sense and experience’ test. In March v E & MH Stramare Pty Ltd
(1991) 171 CLR 506; 99 ALR 423, the heavily intoxicated plaintiff was injured
when he drove into the rear of the defendant’s truck. The defendant had
parked the truck, with its rear and hazard lights on, in the middle of the road
at night to load bins of farm produce. The trial judge found for the plaintiff
but reduced his damages by 70 per cent to take into account his contributory
negligence. The question the High Court was required to answer was whether
the ‘conduct of the defendant in parking a truck in the middle of the street
was a legally operative cause of the damage suffered by the plaintiff’: at CLR
526; ALR 437 per McHugh J. The High Court unanimously agreed with the
trial judge and found that both the defendant’s parking of its truck in the
middle of the road and the plaintiff’s intoxication were each a cause of the
accident in which the plaintiff suffered his injuries or damage.
Mason CJ, with whom Dean, Toohey and Gaudron JJ agreed, rejected the
use of lengthy analysis of causation theory3 as not being useful in ascertaining
or apportioning legal responsibility. Instead, his Honour held that ‘at law, a
person may be responsible for damage when his or her wrongful conduct is
one of a number of conditions sufficient to produce that damage’: at CLR 509;
ALR 425.

[page 299]

Their Honours also confirmed the continuing validity of the ‘but for’ test,
but held that, in certain circumstances, the results yielded by that test must be
‘tempered by the making of value judgments and the infusion of policy
considerations’: at CLR 516; ALR 431 per Mason CJ.

12.28 The common law test of ‘common sense and experience’ will be
used in circumstances where the results yielded by the ‘but for’ test need to be
‘tempered’ by normative considerations, including value judgments involving
ordinary notions of language and common sense and policy considerations.
Typical situations where the ‘common sense and experience’ test will be
applied are in cases which raise difficulties due to antecedent causes and
multiple causes. See, for example, Bennett v Minister for Community Welfare
(1992) 176 CLR 408; Medlin v State Government Insurance Commission
(1995) 182 CLR 1; 127 ALR 180; Pledge v Roads and Traffic Authority (2004)
205 ALR 56; 78 ALJR 572; Roads and Traffic Authority v Royal (2008) 245
ALR 653; 82 ALJR 870.

12.29 In Pledge v Roads and Traffic Authority (2004) 205 ALR 56; 78 ALJR
572, the High Court applied the ‘common sense and experience’ test to
determine whether, in the circumstances of that particular case, each of three
possible causes should be regarded as a legally significant cause of the motor
vehicle accident in which the nine-year-old plaintiff was injured. The three
possible causes were:
1. the failure to keep a proper lookout by the first defendant driver
who struck the child;
2. the joint failure of the council and road traffic authority to
appropriately maintain the foliage on the median strip so that the
driver’s view of the child stepping off the median strip was not
obscured; and
3. the style and location of parking bays built by the road traffic
authority and the failure by the council to post warning signs as to
the dangers posed by their presence.
In explaining which of the causal factors should be held legally relevant or
significant, their Honours unanimously agreed that the third possible cause,
that is, the location and design of the parking bays, was insufficient grounds
to hold that the lack of a sign of the kind postulated had been a cause of the
accident. As Hayne J explained (at [13]):
No doubt the positioning of the parking bays and their use on the day of the accident were
events which form a part of the history which led to Nadia Ryan being struck by the vehicle
which Mr Pledge was driving. But did the presence or design of the bays play a role which, in the
context of an inquiry about negligence, can properly be described as causative? If the provision
or the design of the parking bays … played any role in the happening of this accident it was so
slight as properly to be discarded from consideration in assessing legal responsibility.

12.30 The ‘common sense and experience’ test is also not a complete
answer to the question of causation. The High Court in Travel Compensation
Fund v Tambree (t/as R Tambree and Associates) (2005) 224 CLR 627; 222
ALR 263 held that the common law test is not of general application but may
operate differently according to the purpose for which the causation question
is asked. Gummow and Hayne JJ, in particular, were also doubtful as to
whether there is any ‘common sense’ notion of
 [page 300]

causation which can provide a useful, still less universal, legal norm. Instead,
their Honours suggested:
There are, therefore, cases in which the answer to a question of causation will require
examination of the purpose of a particular cause of action, or the nature and scope of the
defendant’s obligation in the particular circumstances. In this case, the primary task of the Court
is to apply the legislative norms to be found in the Fair Trading Act …: at [45].

12.31 In Travel Compensation Fund v Tambree (t/as R Tambree and

Associates), the plaintiff was the statutory insurer for travel agents and the
defendants were the accountant and auditor of a licensed travel agent. As
required by the statutory insurance scheme, the defendants provided financial
statements to the plaintiff statutory insurer. The financial statements were
found to be misleading and deceptive, a breach of the consumer protection
legislation. The causation issue arose because the plaintiff’s damage, being the
payment of compensation claims to the travel agent’s clients, mainly arose at
a time when the travel agent was unlicensed and, therefore, trading illegally.
In the High Court, their Honours unanimously agreed that where a cause of
action is conferred by statute, the statutory objectives and purpose are the
primary source of the relevant legal norms: see, for example, Gleeson CJ at
[28], Kirby J at [66] and Callinan J at [79].
See also Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221
CLR 568; 215 ALR 385 at [97]; Toll Pty Ltd v Dakic [2006] NSWCA 58.

12.32 In Roads and Traffic Authority v Royal (2008) 245 ALR 653; 82 ALJR
870, the defendant (Royal) was in a car accident at an intersection with the
plaintiff who took action against Royal and the Roads and Traffic Authority
(RTA) in negligence. The trial judge found the defendant negligent, but held
that the RTA was not in breach of its duty to Royal. On appeal it was held that
the RTA was in breach of its duty — failing to improve the vision of the
drivers by moving the stop sign at the intersection and failing to construct a
different intersection that was safer. The issue before the High Court was
whether the breach of the RTA (the appellant) had caused the plaintiff’s loss.
The defendant argued that if there was no cross-intersection, there would
not have been a cross-intersection accident, and that the cross-intersection
had a design fault which could have been overcome by replacing the cross-
intersection and by failing to do this, the RTA caused the accident. The High
Court pointed out that the majority of the Court of Appeal had erroneously
relied upon the ‘but for’ test as a comprehensive test of causation: at [32].
Even though if a differently designed intersection existed, the accident on the
balance of probabilities would not have happened, on the evidence the design
of the intersection had not contributed to the accident. The High Court held
that causation had not been established. Gummow, Hayne and Heydon JJ
stated (at [25]):
… even if it could be said that the appellant’s breach of duty “did materially contribute” to the
occurrence of an accident, “by creating a heightened risk of such an accident” … it made no
contribution to the occurrence of this accident.

[page 301]

Civil Liability Legislation

12.33 The civil liability legislation has adopted the test of ‘necessary
condition’ of the occurrence of the harm in respect of factual causation and
provides for ‘exceptional’ cases. For example, s 11 of the Civil Liability Act
2003 (Qld) provides:
(1) A decision that a breach of duty caused particular harm comprises the following
elements —
(a) the breach of duty was a necessary condition of the occurrence of the harm (factual
causation);
…
(2) In deciding in an exceptional case, in accordance with established principles, whether a
breach of duty — being a breach of duty that is established but which can not be
 established as satisfying subsection (1)(a) — should be accepted as satisfying subsection
(1)(a), the court is to consider (among other relevant things) whether or not and why
responsibility for the harm should be imposed on the party in breach.

The factual causation subsection has been referred to as the ‘statutory

statement of the “but for” test of causation’: Strong v Woolworths Ltd (t/as Big
W) (2012) 246 CLR 182; 285 ALR 420 at [18]; Adeels Palace Pty Ltd v
Moubarak (2009) 239 CLR 420; 260 ALR 628 at [55].
Subsection (2), ‘exceptional’ cases, applies when there are evidentiary gaps
and therefore the ‘but for’ test is not appropriate: see 12.39.
See also Civil Law (Wrongs) Act 2002 (ACT) s 45 (subs (1)(a) refers to
negligence); Civil Liability Act 2002 (NSW) s 5D (negligence); Wrongs Act
1936 (SA) s 34 (negligence); Civil Liability Act 2002 (Tas) s 13 (breach of
duty); Wrongs Act 1958 (Vic) s 51 (negligence); Civil Liability Act 2002 (WA)
s 5C (fault). There is no equivalent in the Northern Territory legislation.

The ‘necessary condition’ test

12.34 Unlike the common law ‘common sense and experience’ test, where
normative issues can be considered, under the civil liability legislation test of
causation, normative issues are not relevant. Factual causation under the
legislation is the ‘but for’ test: Adeels Palace Pty Ltd v Moubarak (2009) 239
CLR 420; 260 ALR 628 at [45]; Zanner v Zanner (2010) 79 NSWLR 702;
Strong v Woolworths Ltd (t/as Big W) (2012) 246 CLR 182; 285 ALR 420.
In Adeels Palace Pty Ltd v Moubarak at [43], it was stated:
Dividing the issue of causation in this way expresses the relevant questions in a way that may
differ from what was said by Mason CJ, in March v Stramare (E & M H) Pty Ltd [(1991) 171
CLR 506; 99 ALR 423] to be the common law’s approach to causation. The references in March
v Stramare to causation being “ultimately a matter of common sense” were evidently intended
to disapprove the proposition “that value judgment has, or should have, no part to play in
resolving causation as an issue of fact”. By contrast, s 5D(1) treats factual causation and scope of
liability as separate and distinct issues. [footnotes omitted]

[page 302]
 In that case the respondent was shot on the appellant’s premises (a
restaurant and nightclub). It was argued that the appellant was negligent for
not having sufficient security on the premises for the New Year’s Eve
function. The court explained that ‘the first of the two elements identified in s
5D(1) (factual causation) is determined by the “but for” test: but for the
negligent act or omission, would the harm have occurred?’: at [45]. The court
thought that the evidence did not prove that on the balance of probabilities
additional security would have prevented the respondent from being shot:
Security personnel may have been able to deter or prevent re-entry by the drunk or the
obstreperous would-be patron willing to throw a punch. There was, however, no basis in the
evidence for concluding that security staff at the entrance to the restaurant would have deterred
or prevented the re-entry to the premises of a man armed with a gun when later events showed
he was ready and willing to use the weapon on persons unconnected with his evident desire for
revenge: at [47].

The respondent did not prove factual causation by pointing to the various
possibilities that may have happened if the circumstances were different: at
[50]. The court also pointed out that the ‘but for’ test was not satisfied merely
because the injury suffered was the ‘very kind of thing’ the duty required the
appellant to take reasonable steps to prevent: at [51].

12.35 In Strong v Woolworths Ltd (t/as Big W) (2012) 246 CLR 182; 285
ALR 420, the appellant was injured by a fall outside the respondent’s premises
inside a shopping centre. The appellant walked with crutches due to a
disability, and one of the crutches came into contact with a hot potato chip
which was on the floor. This caused the crutch to slide and the appellant fell.
The appellant alleged that the respondent was in breach of its duty of care by
failing to institute and maintain a cleaning system to detect spillages and
foreign objects within its sidewalk sales area. To prove factual causation, the
appellant had to establish that had a periodic system of cleaning and
inspection of the sidewalk sales area been implemented on the day of the
incident, on the balance of probabilities the hot chip would have been
detected and removed before she came into contact with it: at [32].
 The Court of Appeal had held that it could not be concluded that it was
more probable than not that the appellant would not have fallen had there
been cleaning of the area at 15-minute intervals as well as employees of the
respondent on the lookout for spillages. An assumption was made by the
Court of Appeal that hot chips were more likely to be eaten at lunch time, the
time of the incident.
On appeal the High Court discussed factual causation under the civil
liability legislation. The court noted that factual causation required ‘proof that
the defendant’s negligence was a necessary condition of the occurrence of the
particular harm’ and explained (at [20]):
A necessary condition is a condition that must be present for the occurrence of the harm.
However, there may be more than one set of conditions necessary for the occurrence of
particular harm and it follows 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 causation within s 5D(1)(a) [Civil Liability Act 2002 (NSW)]. In such
a case, the defendant’s conduct may be described as contributing to the occurrence of the harm.

[page 303]

The High Court was of the opinion that although there may be more than
one cause of a plaintiff’s loss, a defendant’s breach may still be a necessary
condition of the harm and satisfy factual causation under the statute.

12.36 See also Zanner v Zanner (2010) 79 NSWLR 702, where the
respondent was injured when her 11-year-old son, the appellant, was
manoeuvring a car into the carport at their home. The appellant’s foot slipped
causing the car to lurch forward and strike the respondent who was standing
in front of the car. The appellant argued that it was the respondent’s conduct
of allowing the appellant to move the car that was the cause of the accident.
Applying the test for factual causation, ‘but for’ the appellant’s negligence in
moving the car, the respondent would not have been injured and also, ‘but
for’ the respondent allowing the appellant to move the car, the respondent
would not have been injured.
Allsop P held (at [11]):
… the notion of cause at common law can incorporate “materially contributed to” in a way
which would satisfy the “but for” test. Some factors which are only contributing factors can give
a positive “but for” answer. Both the driver who goes through the red light and the driver with
whom he collides who is not paying attention contribute to the accident. If either episode of
neglect had not occurred the accident would not have occurred.

12.37 In Wallace v Kam (2013) 250 CLR 375; 297 ALR 383, the appellant
alleged that the doctor (respondent) had been negligent in failing to warn of
material risks associated with an operation. The material risks were the
possibility of local nerve damage (neurapraxia) and a 5 per cent risk of
paralysis. The appellant did not suffer paralysis but did suffer local nerve
damage. The evidence was that if the appellant had been warned of the
possibility of local nerve damage, he would still have undergone the
operation. However, if he had been advised of the one in 20 chance of
paralysis, he would not have had the operation.
It was held that the respondent had breached his duty of care by failing to
warn the appellant of the material risks of physical injury that were inherent
in the surgical procedure. This was a precondition to the harm suffered, as if
warned the appellant would have chosen not to have undergone the surgical
procedure and would not have sustained nerve damage. The High Court
stated in a joint judgment (at [16]):
The determination of factual causation in accordance with s 5D(1)(a) involves nothing more or
less than the application of a “but for” test of causation. That is to say, a determination in
accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm
is nothing more or less than a determination on the balance of probabilities that the harm that
in fact occurred would not have occurred absent the negligence. [footnotes omitted]

The court held that the test whether the negligence was a necessary
condition of the harm was ‘entirely factual, turning on proof by the plaintiff
of relevant facts on the balance of probabilities’: at [14].
12.38 The court examined the factual causation of three scenarios in
relation to a doctor breaching the duty to warn of material risks:
(1) The patient would have chosen to undergo the treatment even if
warned – no factual causation is established as ‘the negligent failure
to warn can therefore be determined not to have caused the
physical injury’: at [18].

[page 304]

(2) The patient would not have chosen to undergo the treatment if
warned – factual causation may be established as ‘absent the
negligent failure to warn, the treatment would not have gone ahead
at any time and the physical injury would not have been sustained’:
at [19].
(3) The patient would have chosen not to undergo the treatment at the
time, but may have chosen to undergo the treatment at a later time
– factual causation is established. The court reasoned:
Absent the negligent failure to warn, the treatment that in fact occurred would not
have occurred when it did and the physical injury in fact sustained when the
treatment occurred would not then have been sustained. The same treatment may
well have occurred at some later time but (provided that the physical injury
remained at all times a possible but improbable result of the treatment) the physical
injury that was sustained when the treatment in fact occurred would not on the
balance of probabilities have been sustained if the same treatment had occurred on
some other occasion: at [20].

The evidentiary gap

12.39 If a plaintiff cannot establish that the negligence was a necessary
condition of the occurrence of the harm they suffered, it may be possible to
prove causation by an alternative route in limited circumstances if it is an
exceptional case. The causation provisions of the civil liability legislation
provide:
 In deciding in an exceptional case, in accordance with established principles, whether a breach
of duty — being a breach of duty that is established but which can not be established as
satisfying subsection (1)(a) — should be accepted as satisfying subsection (1)(a), the court is to
consider (among other relevant things) whether or not and why responsibility for the harm
should be imposed on the party in breach.

See Civil Liability Act 2002 (NSW) s 5D(2); Civil Liability Act 2003 (Qld) s
11(2); Civil Liability Act 2002 (Tas) s 13(2); Wrongs Act 1958 (Vic) s 51(2)
(‘appropriate cases’); Civil Liability Act 2002 (WA) s 5C(2). The equivalent
provisions in the Australian Capital Territory and South Australia do not
refer to ‘exceptional’ or ‘appropriate’ cases, instead noting the situations in
which a test other than the ‘but for’ test may be relied upon: Civil Law
(Wrongs) Act 2002 (ACT) s 45(2); Wrongs Act 1936 (SA) s 34(2). There is no
equivalent in the Northern Territory legislation.

12.40 However, the mere fact that causation cannot be established by

application of the ‘but for’ test is not an exceptional case unless there is an
evidentiary gap: Strong v Woolworths Ltd (t/as Big W) (2012) 246 CLR 182;
285 ALR 420; Zanner v Zanner (2010) 79 NSWLR 702; Carangelo v New
South Wales [2016] NSWCA 126.
For example, in Powney v Kerang and District Health (2014) 43 VR 506, the
plaintiff alleged that the defendant had negligently injected him and this
caused an infection. The court held that as the plaintiff’s harm allegedly was
the result of one tortious act and no question of any unknown aetiology, it
was not an exceptional case that required the application of normative
considerations to determine causation. See also Carangelo v New South Wales
[2016] NSWCA 126 at [81].

[page 305]

12.41 In Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; 260 ALR
628, it was pointed out that the phrase ‘exceptional case’ is not defined in the
civil liability legislation and ‘[w]hether, or when, s 5D(2) [Civil Liability Act
2002 (NSW)] is engaged must depend, then, upon whether and to what
extent “established principles” countenance departure from the “but for” test
of causation’: at [54]. The High Court held (at [57]) that the case was not an
exceptional one requiring consideration of whether responsibility should be
imposed upon the party in breach.
See also French v QBE Insurance (Australia) Pty Ltd (2011) 58 MVR 214,
where the court held that causation had not been established under s 11(1)(a)
of the Civil Liability Act 2003 (Qld) and the circumstances did not require s
11(2) to be applied: at [57]–[65].

12.42 It is now established that relying upon proving causation in an

exceptional case is limited to specific circumstances: Strong v Woolworths Ltd
(t/as Big W) (2012) 246 CLR 182; 285 ALR 420; Zanner v Zanner (2010) 79
NSWLR 702. In Strong v Woolworths Ltd (t/as Big W), a majority of the High
Court held that even if there is more than one factor contributing to the
plaintiff’s loss, there is no need to apply the ‘exceptional case’ law as in subs
(2) of the civil liability legislation. It was held (at [26]):
[Subsection (2)] permits a finding of causation in exceptional cases, notwithstanding that the
defendant’s negligence cannot be established as a necessary condition of the occurrence of the
harm. Whether negligent conduct resulting in a material increase in risk may be said to admit of
proof of causation in accordance with established principles under the common law of Australia
has not been considered by this court. Negligent conduct that materially contributes to the
plaintiff’s harm but which cannot be shown to have been a necessary condition of its occurrence
may, in accordance with established principles, be accepted as establishing factual causation,
subject to the normative considerations to which [subsection (2)] requires that attention be
directed. [footnotes omitted]

Referring to the Ipp Report4 and the decision of Zanner v Zanner (2010) 79
NSWLR 702, the joint judgment of French CJ, Gummow, Crennan and Bell JJ
stated that the two situations which could be considered to be exceptional
cases were where (at [25]):
‘the cumulative operation of factors in the occurrence of the total harm
in circumstances in which the contribution of each factor to that harm
 is unascertainable’ as in Bonnington Castings Ltd v Wardlaw [1956] AC
613; and
the ‘negligent conduct that materially increases the risk of harm in
circumstances in which the state of scientific or medical knowledge
makes it impossible to prove the cause of the plaintiff’s harm’ as in
Fairchild v Glenhaven Funeral Services Ltd [2002] 3 All ER 305; [2003]
1 AC 32 (see 12.46).

12.43 Therefore, exceptional cases are where there are multiple or complex
causes, usually operating more or less simultaneously, and which often occur
in the context of workplace or medical negligence cases. They are one of the
most challenging questions in

[page 306]

the law of negligence when there has clearly been a breach of the duty of care
but there is an evidential gap in the sense that it is not possible for the plaintiff
to prove, on the balance of probabilities, that the defendant’s breach was a
cause of the plaintiff’s damage.

12.44 In particular, these cases are distinguished by the fact that, because
of limitations in medical knowledge, it is impossible for the plaintiff to
surmount the ‘evidential gap’ and to prove, on the balance of probabilities,
that the defendant’s negligence was a necessary cause of the plaintiff’s
damage. In these cases, the courts have recognised that the better question to
ask is whether, on the balance of probabilities, the defendant’s negligence
made a ‘material contribution’ to the risk of the damage occurring: McGhee v
National Coal Board [1973] 1 WLR 1; [1972] 3 All ER 1008; Bonnington
Castings Ltd v Wardlaw [1956] AC 613.

12.45 The facts and decision by the House of Lords in McGhee v National
Coal Board [1973] 1 WLR 1; [1972] 3 All ER 1008 (McGhee) illustrate the
problem of establishing causation in fact where the defendant’s negligence is,
on a common sense basis, one of the causal factors, but it is impossible, on the
balance of probabilities, to disentangle that cause from others. McGhee
concerned a workman who was employed to empty pipe and brick kilns at a
brickworks and who contracted dermatitis. In an action against the
employers, the breach of duty alleged was failure to take reasonable care to
provide adequate washing facilities, including showers. The employers
admitted breach but argued the plaintiff had failed to prove that the breach
caused contraction of the disease.
The House of Lords acknowledged that there was an evidential gap in that
the plaintiff’s medical evidence could not establish that, had he been able to
wash immediately in showers provided by his employers, he would not have
contracted the disease. Their Honours nevertheless held that, in the absence
of complete medical knowledge of all the material factors relating to the
disease, there was no substantial difference between materially increasing the
risk of injury and making a material contribution to the injury. Therefore, the
plaintiff was entitled to recover for an injury within the risk which the
employer had created: compare Wilsher v Essex Area Health Authority [1987]
QB 730; Hotson v East Berkshire Area Health Authority [1987] AC 750. The
Australian High Court has applied McGhee in a series of cases, including
Chappel v Hart (1998) 195 CLR 232; 156 ALR 517; Naxakis v Western General
Hospital (1999) 197 CLR 269; Rosenberg v Percival (2001) 205 CLR 434.

12.46 The House of Lords confirmed the McGhee approach in Fairchild v

Glenhaven Funeral Services Ltd [2002] 3 All ER 305; [2003] 1 AC 32
(Fairchild). In Fairchild, the plaintiffs contracted mesothelioma after being
exposed to asbestos by successive employers. The nature of the disease is such
that it is not known whether or not just one asbestos fibre can cause the
disease as opposed to a cumulative exposure over a period of time. Therefore,
the plaintiffs were unable to prove that ‘but for’ the negligence of any one
employer they would not have contracted the disease, or that employment
with any one of the employers was ‘a necessary condition’ of the disease.
Nevertheless, their Honours held that it was sufficient that the plaintiffs were
able to establish, on the balance of probabilities, that each of the defendants
had materially increased the risk that the plaintiffs would contract the disease.

[page 307]

12.47 ‘Material contribution to the risk’ of harm or damage was

considered again by the House of Lords in Barker v Corus (UK) Ltd [2006] 3
All ER 785; [2006] 2 AC 572. Their Lordships held that where a defendant
had made a material contribution to the risk that the plaintiff’s husband
would contract mesothelioma, then the fact that he had been self-employed
for a period of time would be relevant only to the ascertainment of the degree
of the ‘material contribution to the risk’ and to the quantum of the award
damages. However, in Sienkiewicz v Greif (UK) Ltd; Willmore v Knowsley
Metropolitan Borough Council [2011] 2 WLR 523 at [18], it was recognised
that a ‘special rule’ as to causation for mesothelioma cases had been created
by the decision of Fairchild:
The special rule of causation applied to mesothelioma was devised because of ignorance about
the biological cause of the disease. It was accepted in Fairchild’s case and Barker’s case that this
rendered it impossible for a claimant to prove causation according to the conventional “but for”
test and this caused injustice to claimants.

12.48 This was acknowledged by the High Court in Amaca Pty Ltd (under
NSW administered winding up) v Booth; Amaba Pty Ltd (under NSW
administered winding up) v Booth (2011) 283 ALR 461; 86 ALJR 172 (Amaca
v Booth). French CJ commented that Fairchild had developed a ‘modified
concept of causation’ which created a new head of tortious liability: at [52].
See also Gummow, Hayne and Crennan JJ at [80]–[81].

12.49 Amaca v Booth involved an ‘exceptional case’; however, as the injury

was a dust disease, mesothelioma, the civil liability legislation did not apply:
see 12.3. The legislation does not define ‘exceptional case’ but it does state
that an exceptional case is to be decided ‘in accordance with established
principles’. Amaca v Booth demonstrates the difficulty in establishing
causation when the plaintiff has been exposed to asbestos from a variety of
sources. The facts were that the plaintiff had been exposed to asbestos in the
following situations:
home renovations when he was a child;
loading a truck as a youth; and
as a mechanic working on brake linings from 1953 to 1983.
The respondent sued the manufacturer of the brake linings in negligence
for his contracting of mesothelioma. The New South Wales Dust Diseases
Tribunal held that the asbestos in brake linings had materially contributed to
the respondent’s contraction of mesothelioma. The Court of Appeal agreed
that causation had been established. The High Court granted special leave to
appeal on the issue of whether causation could be established by an increase
in risk and whether the Court of Appeal had relied upon insufficient expert
opinion evidence in respect of causation.
The appellants argued that ‘it was not possible to say which exposures in
fact made a material contribution to its development or when or why’: at [37].
The trial judge had assessed the appellants’ responsibility for the respondent’s
exposure to asbestos that was additional to environmental background
exposure as 10 per cent for Amaca and 20 per cent for Amaba. The appellants
argued that this meant causation had been made out on a small increase in
the risk of harm: at [39].

[page 308]

French CJ stated that causation could not be established on an alleged

increase in risk: at [41]. His Honour stated (at [42]–[43]):
It is necessary, nevertheless, to reflect upon the relationship between risk and causation. In
 ordinary usage “risk” refers to a hazard or danger or the chance or hazard of loss. Assessment of
the risk of an occurrence is prospective in character. It can be expressed as an ex ante probability
that the occurrence will occur. If quantifiable, that probability may be expressed numerically as
a figure greater than “zero” up to “one” which denotes certainty. The range of probabilities may
be traversed by terms such as “mere possibility”, “real chance”, “more likely than not”, “highly
likely” and, ultimately, “certainty”.

The existence of an association or a positive statistical correlation between the occurrence of one
event and the subsequent occurrence of another may be expressed as a possibility, which may be
no greater than a “real chance” that, if the first event occurs, the second event will also occur.
The mere existence of such an association or correlation does not justify a statement, relevant to
factual causation in law, that the first event “creates” or “gives rise to” or “increases” the
probability that the second event will occur. Such a statement contains an assumption that if the
second event occurs it will have some causal connection to the first. However, if the association
between two events is shown to have a causal explanation, then the conclusion may be open, if
the second event should occur, that the first event has been at least a contributing cause of that
occurrence. An after-the-event inference of causal connection may be reached on the civil
standard of proof, namely, balance of probabilities, notwithstanding that the statistical
correlation between the first event and the second event indicated, prospectively, no more than
a ‘mere possibility’ or ‘real chance’ that the second event would occur given the first event.
[footnotes omitted]

In a joint judgment, Gummow, Hayne and Crennan JJ held (at [88]):

The epidemiological evidence, considered by itself, did leave open the inference that cumulative
exposure to asbestos increased the risk of contracting mesothelioma by developing bodily
processes to an irreversible point. Further, as Dr Leigh emphasised in his report, inability to
demonstrate epidemiologically a statistically significant increase in risk in motor mechanics,
relative to other occupational categories, does not, in any way, negate a causal inference in an
individual case where, beyond the general background environment, the only asbestos exposure
was incurred in that occupation.

The majority held that causation had been established. Heydon J was a
dissenting judgment and held that to prove causation the respondent had to
establish that exposure to asbestos before his work as a mechanic ‘had not
caused the irreversible changes in his body which led him later to display the
symptoms of mesothelioma’ and that ‘some of the fibres to which he was
exposed as a brake repairer were Amaca fibres (as distinct from the fibres of
other brake manufacturers), and that they caused those changes in his body’:
at [103]. His Honour noted (at [93]) that legislation may be more suitable
than the common law action of negligence:
 The extent of exposure to asbestos amongst those now living, the likely exposure amongst those
yet to be born, and the likelihood of further injury taking place when asbestos is removed from
the many places where it is now found, mean that problems of the kind thrown up in these
appeals will remain for decades to come. Perhaps a social-medical problem of this size requires a
legislative solution.

12.50 See also Amaca Pty Ltd v Ellis (2010) 240 CLR 111; 263 ALR 576,
where material contribution was not relevant because a connection between
exposure to asbestos and

[page 309]

the harm was not established. In that case, Paul Cotton, who had died from
lung cancer, had commenced actions in negligence against two different
employers, alleging that his employment had exposed him to asbestos,
causing him to contract lung cancer. Cotton was also a smoker who had
smoked on average 15 to 20 cigarettes a day for more than 26 years. There
was no issue that a duty of care was owed and had been breached, but the
High Court had to consider whether causation was established by applying
the ‘but for’ test — ‘would Mr Cotton have contracted lung cancer but for the
negligent exposure to asbestos?’: at [11].
The epidemiological studies considered by the court supported two
conclusions:
1. that it was ‘more probable than not’ that Cotton’s smoking was a
necessary condition for his cancer; and
2. that the risks associated with asbestos, ‘whether alone or in
conjunction with smoking, are low and not sufficient to found the
inference which the plaintiff sought to have made’ (that is, that it
was more probable than not that Cotton’s exposure to asbestos
fibres was a cause of the cancer): at [64].
Therefore, the court held (at [65]) that causation had not been established:
 It was no t shown to be more probable than not that asbestos was a cause of (a necessary
condition for) his cancer. It was not shown that exposure to asbestos made a material
contribution to his cancer. Material contribution was not shown because a connection between
Mr Cotton’s inhaling asbestos and his developing cancer was not demonstrated.

Multiple Tortfeasors
12.51 Where two or more defendants have caused the plaintiff’s damage,
the defendants are referred to as concurrent (joint or several) or successive
tortfeasors: see Chapter 21. In these situations, the courts have held that it is
sufficient for the plaintiff to establish, on the balance of probabilities, that
each defendant or tortfeasor materially contributed to the plaintiff’s damage.

12.52 In these cases, the difficulty is not that there is an evidential gap;
instead, the difficulty is determining who should bear what proportion of the
responsibility for the harm. These cases should not, therefore, be confused
with the ‘exceptional cases’ discussed immediately above. In these cases, it is
possible to establish that each tortfeasor’s negligence was a necessary
condition of the plaintiff’s damage; the difficulty is the extent of the damage
for which each tortfeasor should be held responsible.
The distinction is illustrated by the case of Nilon v Bezzina [1988] 2 Qd R
420, where the plaintiff was involved in a motor vehicle accident in 1976 and,
again, in another in 1982. In both accidents, the plaintiff suffered damage to
his spine and brought an action against each defendant. The two actions were
consolidated and heard together. The Queensland Court of Appeal rejected
the first defendant’s argument that his liability for the injury to the plaintiff’s
spine had ceased with the occurrence of the second accident. The court held
that it was sufficient for the plaintiff to show, on the balance of probabilities,
that a particular breach of duty had materially contributed to the injury
complained of. The plaintiff was not obliged to go further and attempt to
disentangle and identify with complete precision the relative contributions of
each
 [page 310]

defendant to the plaintiff’s accumulated injury and loss: applying Bonnington

Castings Ltd v Wardlaw [1956] AC 613 at 620. The result was that the
plaintiff’s 70 per cent disability was attributed equally to the two defendants:
compare Faulkner v Keffalinos (1971) 45 ALJR 80; Baker v Willoughby [1970]
AC 467; Joblins v Associated Dairies Ltd [1982] AC 794.

Onus of Proof
12.53 The onus of proof in regard to factual causation is upon the plaintiff
and the burden of proof is on the ‘balance of probabilities’. Proof of causation
may be established by inference in appropriate circumstances (Betts v
Whittingslowe (1945) 71 CLR 637) and the common law rule of res ipsa
loquitur is also relevant in the context of causation in fact: see, for example,
TNT Management Pty Ltd v Brooks (1979) 23 ALR 345; Government
Insurance Office (NSW) v Best (1993) Aust Torts Reports ¶81-210; West v
Government Insurance Office (NSW) (1981) 148 CLR 62; 35 ALR 437. See also
11.98.

12.54 The civil liability legislation includes a restatement of this basic rule.
For example, s 12 of the Civil Liability Act 2003 (Qld) provides:
In deciding liability for breach of a duty, the plaintiff always bears the onus of proving, on the
balance of probabilities, any fact relevant to the issue of causation.

See also Civil Law (Wrongs) Act 2002 (ACT) s 46; Civil Liability Act 2002
(NSW) s 5E; Wrongs Act 1936 (SA) s 35; Civil Liability Act 2002 (Tas) s 14;
Wrongs Act 1958 (Vic) s 52; Civil Liability Act 2002 (WA) s 5D. There is no
equivalent in the Northern Territory legislation.

12.55 The legislation goes further, adopting the recommendation of the

Ipp Report,5 that where an issue in fact is what the plaintiff would have done
if the defendant had not been negligent, then, for the purposes of factual
causation, this issue should be decided subjectively, but, nevertheless, should
be decided without the benefit of the plaintiff’s testimony as to what he or she
would have done had the defendant not acted negligently. This devaluing of
the plaintiff’s testimony is consistent with the approach of the High Court in,
for example, Hoyts Pty Ltd v Burns (2003) 77 ALJR 1934, but goes further in
entirely disallowing the plaintiff’s evidence in this regard.
Section 11(3) of the Civil Liability Act 2003 (Qld) states:
If it is relevant to deciding factual causation to decide what the person who suffered harm would
have done if the person who was in breach of the duty had not been so in breach —
(a) the matter is to be decided subjectively in the light of all relevant circumstances, subject
to paragraph (b); and
(b) any statement made by the person after suffering the harm about what he or she would
have done is inadmissible except to the extent (if any) that the statement is against his or
her interest.

[page 311]

See Civil Law (Wrongs) Act 2002 (ACT) s 45(3); Civil Liability Act 2002
(NSW) s 5D(3); Wrongs Act 1936 (SA) s 34(3); Civil Liability Act 2002 (Tas)
s 13(3); Wrongs Act 1958 (Vic) s 51(3); Civil Liability Act 2002 (WA) s 5C(3).
There is no equivalent in the Northern Territory legislation.

4 Scope of Liability
12.56 If factual causation is established, the third stage in proving the
damage element in negligence requires a consideration of the scope of the
defendant’s liability, referred to as ‘legal causation’. At common law, this
stage is referred to as either ‘remoteness’ or ‘causation in law’. It involves the
consideration of normative issues which, theoretically at least, is restricted to
whether the kind of damage suffered by the plaintiff was a reasonably
foreseeable consequence of the defendant’s act or omission.
12.57 The civil liability refers to these considerations as the scope of
liability. For example, s 11 of the Civil Liability Act 2003 (Qld) states:
(1) A decision that a breach of duty caused particular harm comprises the following
elements –
…
(b) it is appropriate for the scope of the liability of the person in breach to extend to
the harm so caused (scope of liability).
…
…
(4) For the purpose of deciding the scope of liability, the court is to consider (among
other relevant things) whether or not and why responsibility for the harm should be
imposed on the party who was in breach of the duty.

See Civil Law (Wrongs) Act 2002 (ACT) s 45(1)(b), (4); Civil Liability Act
2002 (NSW) s 5D(1)(b), (4); Wrongs Act 1936 (SA) s 34(1)(b), (4); Civil
Liability Act 2002 (Tas) s 13(1)(b), (4); Wrongs Act 1958 (Vic) s 51(1)(b), (4);
Civil Liability Act 2002 (WA) s 5C(1)(b), (4). There is no equivalent in the
Northern Territory legislation.

12.58 The civil liability legislation places no theoretical restrictions on the

range of normative issues which may be considered when determining the
appropriate extent, or scope, of a defendant’s liability. The only requirement
is for the court to explain whether or not, and why, the negligent party should
be held liable for the plaintiff’s damage. Recommendation 29 of the Ipp
Report6 states:
“Scope of liability” covers issues, other than factual causation, referred to in terms such as “legal
cause”, “real and effective cause”, “commonsense causation”, “foreseeability” and “remoteness of
damage”.

[page 312]

In Wallace v Kam (2013) 250 CLR 375; 297 ALR 38 at [23], the High Court
stated that the scope of liability requires a court to:
… explicitly to consider and to explain in terms of legal policy whether or not, and if so why,
 responsibility for the harm should be imposed on the negligent party. What is required in such a
case is the identification and articulation of an evaluative judgment by reference to “the
purposes and policy of the relevant part of the law” (Barnes v Hay (1988) 12 NSWLR 337 at 353,
quoted in Henville v Walker (2001) 206 CLR 459; 182 ALR 37; [2001] HCA 52 at [98]).

See also the Ipp Report at [7.43] where reference is made to intervening
acts that break the chain of causation.

12.59 Therefore, scope of liability, either under the common law or the
legislation, involves a consideration of:
whether the damage is too remote in law;
whether there were any intervening acts; and
whether the defendant’s breach was the legally significant cause of the
damage.

12.60 The scope of the defendant’s liability will not always involve deep
analysis. In Zanner v Zanner (2010) 79 NSWLR 702 at [66] (see 12.36), the
appellant argued that ‘it was not appropriate for the scope of the first
appellant’s liability to extend to the harm caused to the respondent as a
consequence of his conduct’. The court disagreed, however, Allsop P stating
(at [12]):
This case does not demand any great agonising over the application of ss 5D(1)(b) and (4). All
relevant considerations that inform the content of the appropriate scope of the negligent
person’s liability and responsibility point to a positive conclusion as to causation and liability
here. Injury to the mother was entirely foreseeable should negligence occur. The scope of the
risk of harm protected by the duty and created by the breach included injury to the mother. The
injury was not coincidental to the breach. It was the direct and immediate consequence of the
negligence. The son in the car ran over his mother. The content of the duty and the attenuated
standard of care were directed to the exercise of care to avoid injury to the mother in the very
manner that occurred. There was no intervening act of a third party or of an abnormal event.
The only other causal factor was the negligence of the person (the mother) to whom the duty
was owed. There is no reason why the appropriate apportionment of respective responsibility is
not best allocated through contributory negligence. Common sense would attribute the
mother’s injury to the negligence of her son, as well as to her own negligence in putting herself
in that position.

In Finch v Rogers [2004] NSWSC 39 at [148], Kirby J simply said:

 I further believe that it is appropriate that the scope of the defendant’s liability extend to the
harm so caused (s 5D(1)(b)). The consequences were in each case a foreseeable result of the
breach.

See also French v QBE Insurance (Australia) Pty Ltd (2011) 58 MVR 214 at
[55], where Fryberg J stated:
I do not understand s 11(4) [Civil Liability Act 2003 (Qld)] to require a trial judge to reinvent
the wheel in every case. I find no obligation in that provision to reconsider by way of normative
analysis whether or not and why responsibility for the harm inflicted in this motor vehicle
accident should be imposed on that driver. In an ordinary case it suffices for the purpose of

[page 313]

deciding the scope of liability to observe that liability should be imposed because the case law
requires it.

The High Court analysed the scope of liability in Wallace v Kam (2013) 250
CLR 375; 297 ALR 38. The court stated (at [22]):
In a case falling within an established class, the normative question posed by s 5D(1)(b) is
properly answered by a court through the application of precedent. Section 5D guides but does
not displace common law methodology. The common law method is that a policy choice once
made is maintained unless confronted and overruled.

Remoteness of Damage
12.61 A defendant will not be liable in negligence if the damage suffered
by the plaintiff is too remote in law, that is, if it was not the reasonably
foreseeable consequence of the defendant’s breach. In Wallace v Kam (2013)
250 CLR 375; 297 ALR 38, the High Court stated in relation to the scope of
liability under the civil liability legislation, that liability for harm does not
extend beyond that which was foreseeable at the time of the breach as ‘the
scope of liability in negligence normally does not extend beyond liability for
the occurrence of such harm the risk of which it was the duty of the negligent
party to exercise reasonable care and skill to avoid’: at [24].
Prior to the development of reasonable foreseeability, the plaintiff’s
damage had to be the direct consequence of the negligence: Re Polemis and
Furness, Withy & Co Ltd [1921] 3 KB 560.

12.62 The reasonable foreseeability test in the context of the damage

element of a negligence action provides that the damage is compensable if
there was a real risk that the kind of damage suffered by the plaintiff could
result from the defendant’s negligence.

12.63 The test of whether it was a real risk is whether it was a risk which
would occur to the mind of a reasonable person in the defendant’s position,
and would not be brushed aside as far-fetched or unlikely to occur: Overseas
Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (Wagon Mound (No 2))
[1967] AC 617 at 641 per Lord Reid.

12.64 It is not necessary to foresee the chain of events leading to the

damage, nor the exact type of damage nor the extent of the damage: Chapman
v Hearse (1961) 106 CLR 112 at 120–1; Sydney Water Corporation v Turano
(2009) 239 CLR 51; 260 ALR 20 at [46]. The High Court discussed the
reasonable foreseeability test for remoteness in Mount Isa Mines Ltd v Pusey
(1970) 125 CLR 383 at 402; [1971] ALR 253 at 264, where Windeyer J said:
Foreseeability does not mean foresight of the particular course of events causing the harm. Nor
does it suppose foresight of the particular harm which occurred, but only of some harm of a like
kind. That is well established by many cases, including Chapman v Hearse [(1961) 106 CLR 112]
and Hughes v Lord Advocate [(1963) AC 837]. This comfortable latitudinarian doctrine has,
however, the obvious difficulty that it leaves the criterion for classification of kinds of harm
undefined and at large.

12.65 Over four decades later, there is still no more precise definition as to
the meaning of reasonable foreseeability in the context of the damage
element. As Spigelman CJ, with

[page 314]
whom Sheller and McColl JJA agreed, commented in New South Wales v
Godfrey (2004) Aust Torts Reports ¶81-741 at [81]:
There is no authoritative exposition of the principle of remoteness. The case law affords no clear
guidance on the application of the principle. It may be impossible to do so.

The ‘egg-shell skull’ rule

12.66 It is in this context of reasonable foreseeability that the ‘egg-shell
skull’ rule falls to be considered. The rule provides that a tortfeasor must take
the plaintiff as found: Smith v Leech Brain & Co Ltd [1962] 2 QB 405;
Stephenson v Waite Tileman Ltd [1973] 1 NZLR 152; Robinson v Post Office
[1974] 2 All ER 737; [1974] 1 WLR 1176. This means that a defendant will be
liable despite the fact that the plaintiff had a pre-existing susceptibility which
caused the plaintiff’s damage to be far more severe than would otherwise be
the case (Negretto v Sayers [1963] SASR 313) or that the effect of the injury
renders the plaintiff more susceptible to further injury: Wieland v Cyril Lord
Carpets Ltd [1969] 3 All ER 1006.

12.67 However, a defendant will not be liable for all damage. The
operation of the ‘egg-shell skull’ rule is constrained by the requirement that it
only applies to damage of the same kind as that which was reasonably
foreseeable. Since there is no clear definition of when a particular damage is
of the ‘same kind’, this can cause problems, especially in relation to
psychiatric injuries.
In Commonwealth v McLean (1996) 41 NSWLR 389, the plaintiff claimed
damages for his post-traumatic shock after being a seaman on HMAS
Melbourne when it collided with HMAS Voyager. He claimed that because of
the negligent collision he drank and smoked to excess for the next 30 years
causing him to develop throat cancer. The court stated (at 406):
The “egg shell skull” principle makes a defendant liable for damage of an unforeseeable extent,
but not for unforeseeable damage of a different kind. Under this principle a defendant is liable
for additional damage of a foreseeable kind suffered by a plaintiff who has some special
vulnerability. [footnote omitted]
12.68 In Kavanagh v Akhtar (1998) 45 NSWLR 588, the plaintiff’s left arm
and shoulder were injured by the negligence of the defendant. The plaintiff
and her husband were devout Muslims and when, as a consequence of her
injuries, the plaintiff cut off her long hair because she was no longer able to
care for it, her husband divorced her. As a result of these events, the wife
became depressed and suffered a psychiatric illness.
The New South Wales Court of Appeal applied the decision in Hird v
Gibson [1974] Qd R 14, that a psychiatric injury caused by the break-up of the
plaintiff’s marriage which, in turn, was caused by the nature of the injuries
she suffered as a result of the defendant’s negligence, was held to be a
reasonably foreseeable kind of injury. In Kavanagh v Akhtar, Mason P, with
whom Priestley and Handley JJA agreed, applied the common law rule that it
is not necessary that the exact sequence of events was foreseeable, merely that
consequences of the same general character were reasonably foreseeable.
Therefore, the fact that the husband’s reaction to his wife cutting her hair
might have been ‘unusual’, it was sufficient that it was reasonably foreseeable
in the family and cultural

[page 315]

setting within which the husband and wife lived. Mason P stressed that the
principle that a defendant takes the plaintiff as found, includes the ‘particular
psychological and familial situation of the injured plaintiff’: at 601.

Intervening Acts
12.69 It has been noted that the ‘but for’ test created difficulties when an
act or omission after the defendant’s negligence also caused damage to the
plaintiff, for example if the defendant’s negligent driving caused the plaintiff
injury and when treated by the doctor, the doctor was negligent and made the
plaintiff’s injuries worse. ‘But for’ the defendant’s negligence, the plaintiff
would not have needed medical treatment.

12.70 This is the area of novus actus interveniens — intervening acts. As it

is possible for more than one cause to contribute to the plaintiff’s act and each
satisfy the ‘but for’ test, it is a question of whether liability for the whole of the
plaintiff’s damage, including the damage caused by the other party, should be
imposed upon the defendant. The law recognises that some later acts or
omissions may break the chain of causation, limiting the scope of the
defendant’s liability. As it is a way of limiting the defendant’s liability, it may
be considered as a question of the defendant’s scope of liability.

12.71 When the alleged intervening act is an act or omission of the

plaintiff and it contributes to the plaintiff’s loss, prima facie the plaintiff’s
conduct is contributory negligence. However, it is possible that the plaintiff’s
negligence amounts to an intervening act. For example, in M’Kew v Holland
& Hannen & Cubitts (Scotland) Ltd 1970 SC (HL) 20, the defendant’s
negligence caused injury to the plaintiff’s leg and the plaintiff subsequently
fell down some stairs. The court held that the plaintiff’s act of attempting to
descend a steep staircase without assistance or a handrail broke the chain of
causation between the defendant’s breach and the loss suffered by the
plaintiff.

12.72 An intervening act may be conduct of the plaintiff, of a third party

or even a natural phenomenon, such as a severe storm. In Carslogie Steamship
Co Ltd v Royal Norwegian Government [1952] AC 292, the ship Heimgar was
damaged when the Carslogie negligently collided with it. Temporary repairs
were made to Heimgar to enable it to sail to New York for full repairs, but on
the voyage severe weather caused damage to the ship, rendering it
unseaworthy. The court held that that storm broke the chain of causation
between the Carslogie’s negligence and the loss of the use of the Heimgar.

12.73 One of the foundation cases is The Oropesa [1943] P 32. The case
involved a collision between two ships caused by the negligence of the
Oropesa. The plaintiffs’ son worked on the other ship, the Manchester
Regiment, and was in the lifeboat which the master of his ship launched to
cross to the Oropesa to discuss salvage plans. The lifeboat capsized between
the two ships, and their son drowned. The plaintiffs sued the owners of the
Oropesa, alleging that their son’s death had been caused by the negligence of
the Oropesa. The English Court of Appeal rejected the defendant’s argument
that the decision of the master of the Manchester Regiment to cross between
the ships in a lifeboat was a novus actus interveniens and held that there was
an unbroken sequence of cause and effect between the negligence of the
Oropesa and the death of the plaintiffs’ son.

[page 316]

Lord Wright (with whom Scott and MacKinnon JJ agreed) stated the
principle as follows (at 39):
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. I doubt
whether the law can be stated more precisely than that.

12.74 In Haber v Walker [1963] VR 339 at 358, it was stated:

In the first place a wrongful act or omission cannot ordinarily be held to have been a cause of
subsequent harm unless that harm would not have occurred without the act or omission having
previously occurred with such of its incidents as rendered it wrongful. Exceptions to this first
principle are narrowly confined. Secondly, where the requirements of this first principle are
satisfied, the act or omission is to be regarded as a cause of the harm unless there intervenes
between the act or omission and the harm an occurrence which is necessary for the production
of the harm and is sufficient in law to sever the causal connexion. And, finally, the intervening
occurrence, if it is to be sufficient to sever the connexion, must ordinarily be either —
(a) human action that is properly to be regarded as voluntary, or
(b) a casually independent event the conjunction of which with the wrongful act or
omission is by ordinary standards so extremely unlikely as to be termed a coincidence.
[footnotes omitted]
12.75 Therefore, an act will break the chain of causation and the resulting
harm will not be within the defendant’s scope of liability if:
the alleged intervening act or omission is voluntary, deliberate or
negligent;
it is subsequent to the defendant’s negligence; and
the alleged intervening act and its consequences are not the reasonably
foreseeable consequence of the defendant’s negligence.

Voluntary, deliberate or negligent

12.76 In Bennett v Minister of Community Welfare (1992) 176 CLR 408 at
429–30; 107 ALR 617 at 632, McHugh J stated that the causal connection
between the defendant’s negligence and the plaintiff’s damage may be broken
when subsequent conduct of another is ‘the free, deliberate and informed act
or omission of a human being, intended to exploit the situation created by
defendant’.7
In Haber v Walker [1963] VR 339 at 358, it was held that in respect of
causation, ‘voluntary’ did not have a wide meaning, ‘and for an act to be
regarded as voluntary it is necessary that the actor should have exercised a
free choice’. In that case the plaintiff’s husband committed suicide when
mentally unstable as a result of serious injury sustained in an accident due to
the negligence of the defendant. At first instance it was found by the jury that
the suicide was not foreseeable and therefore broke the chain of causation. On
appeal the court considered

[page 317]

whether the act of suicide was voluntary. It was held that when the plaintiff’s
husband had committed suicide, due to his mental state, he was not acting of
his free choice and it was not voluntary. Therefore the suicide did not break
the chain of causation. See also Lisle v Brice [2002] 2 Qd R 168.
 In Medlin v State Government Insurance Commission (1995) 182 CLR 1;
127 ALR 180, a university professor was seriously injured in a motor vehicle
accident and five years later he voluntarily retired because of his own
assessment of the effect of his injuries on his ability to function at work. In
assessing his negligence claim, the trial judge did not allow for any loss of
earning capacity. On appeal, the High Court held that the loss of earning
capacity resulting from the retirement was caused by the professor’s injuries,
and the voluntary retirement did not break the chain of causation. McHugh J
held (at CLR 23; ALR 195) that the retirement would only be an intervening
act if it was unreasonable in the circumstances and on the evidence the
retirement was reasonable and was the result of the injuries sustained.

Foreseeable
12.77 The chain of causation is not broken if the alleged intervening act is
the reasonably foreseeable result of the defendant’s negligence. For example,
in State Rail Authority of New South Wales v Chu (2008) Aust Torts Reports
¶81-940, the respondent broke her ankle on the appellant’s premises.
Approximately six weeks after the accident, the respondent was sexually
assaulted by the person who was assisting her while she was incapacitated.
The trial judge held that the appellant was liable for the loss arising from the
assault as it was a foreseeable consequence of the appellant’s breach of duty.
The judge’s reasoning was that if the respondent had not been injured, she
would not have been relying upon help of her assailant and she would not
have been suffering immobility. The New South Wales Court of Appeal
disagreed, finding that the sexual assault was an intervening act.

12.78 In Chapman v Hearse (1961) 106 CLR 112, Dr Cherry stopped at the
roadside to provide assistance to Chapman at the scene of a motor vehicle
accident. As he reached Chapman, Dr Cherry was hit by another vehicle that
was driven by Hearse. Dr Cherry was killed and his executor sought damages
from Hearse for the benefit of Dr Cherry’s widow and children. Hearse
claimed entitlement to contribution from Chapman if he was found liable.
Chapman argued that the negligent driving of Hearse broke the chain of
causation between the original negligent act and the death of Dr Cherry. The
court held that if a later act was wrongful, it did not necessarily break the
chain of causation if that wrongful act was reasonably foreseeable in the
circumstances. The joint judgment of Dixon CJ, Kitto, Taylor and Windeyer
JJ stated (at 120):
It is, we think, sufficient in the circumstances of this case to ask whether a consequence of the
same general character as that which followed was reasonably foreseeable as one not unlikely to
follow a collision between two vehicles on a dark wet night upon a busy highway. In pursuing
this enquiry it is without significance that Dr Cherry was a medical practitioner or that
Chapman was deposited on the roadway. What is important to consider is whether a reasonable
man might foresee, as the consequence of such a collision, the attendance on the roadway, at
some risk to themselves, of persons fulfilling a moral and social duty to render aid to those
incapacitated or otherwise injured. As Greer LJ said in Haynes v Harwood (1935) 1 KB 146: “It is
not necessary

[page 318]

to show that this particular accident and this particular damage were probable; it is sufficient if
the accident is of a class that might well be anticipated as one of the reasonable and probable
results of the wrongful act” (1935) 1 KB, at p 156. (See also Hyett v Great Western Railway Co
(1948) 1 KB 345 and Carmarthenshire County Council v Lewis (1955) AC 549.) Whether
characterization after the event of its consequences as “reasonable and probable” precisely
marks the full range of consequences which, before the event, were “reasonably foreseeable”
may be, and no doubt will continue to be, the subject of much debate.

12.79 Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522; 59
ALR 722 is an example of consequential negligent medical treatment. The
plaintiff (Glogovic) sought damages from his employer, the respondent, for
injuries sustained in the course of his employment. His injuries required
medical attention and he was treated by the appellant, Dr Mahony. The
respondent alleged that the appellant had been negligent in his treatment of
the plaintiff and that this negligence had ‘caused or contributed to the
continuing injuries and incapacities alleged by the plaintiff and for which he
sues the [respondent]’. The High Court held (at CLR 528–9; ALR 725–6):
 A negligent tortfeasor does not always avoid liability for the consequences of a plaintiff’s
subsequent injury, even if the subsequent injury is tortiously inflicted. It depends on whether or
not the subsequent tort and its consequences are themselves properly to be regarded as
foreseeable consequences of the first tortfeasor’s negligence. A line marking the boundary of the
damage for which a tortfeasor is liable in negligence may be drawn either because the relevant
injury is not reasonably foreseeable or because the chain of causation is broken by a novus actus
interveniens. But it must be possible to draw such a line clearly before a liability for damage that
would not have occurred but for the wrongful act or omission of a tortfeasor and that is
reasonably foreseeable by him is treated as the result of a second tortfeasor’s negligence alone.
Whether such a line can and should be drawn is very much a matter of fact and degree …

Where it is not possible to draw a clear line, the first tortfeasor may be liable in negligence for a
subsequent injury and its consequences although the act or omission of another tortfeasor is the
more immediate cause of that injury … [footnotes omitted]

12.80 As to negligent medical treatment, if it was reasonable for the

plaintiff to seek and accept the treatment, unless the treatment was grossly
negligent, the consequential medical negligence does not break the chain of
causation. In Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522
at 529–30; 59 ALR 722 at 726–7, the court held:
When an injury is exacerbated by medical treatment, however, the exacerbation may easily be
regarded as a foreseeable consequence for which the first tortfeasor is liable. Provided the
plaintiff acts reasonably in seeking or accepting the treatment, negligence in the administration
of the treatment need not be regarded as a novus actus interveniens which relieves the first
tortfeasor of liability for the plaintiff’s subsequent condition. The original injury can be regarded
as carrying some risk that medical treatment might be negligently given. It may be the very kind
of thing which is likely to happen as a result of the first tortfeasor’s negligence. …

However, in the ordinary case where efficient medical services are available to an injured
plaintiff, the original injury does not carry the risk of medical treatment or advice that is
“inexcusably bad”, or “completely outside the bounds of what any reputable medical
practitioner might prescribe” or “so obviously unnecessary or improper that it is in the nature of
a gratuitous aggravation of the injury” or “extravagant from the point of view of medical
practice or hospital routine”. In such

[page 319]

a case, it is proper to regard the exacerbation of a plaintiff’s condition as resulting solely from
the grossly negligent medical treatment or advice, and the fact that the plaintiff acted reasonably
 in seeking and accepting the treatment or in following the advice will not make the original
tortfeasor liable for that exacerbation. [footnotes omitted]

Legally Significant Cause

12.81 It is under the scope of liability that a court will consider whether
the defendant’s breach is the legally significant cause of the plaintiff’s loss.
This will involve a consideration of policy and value judgments, often
referred to as the ‘normative considerations’. Such considerations have always
played a part in the negligence action, as pointed out at [7.43] of the Ipp
Report.8

12.82 State Rail Authority of New South Wales v Wiegold (1991) 25

NSWLR 500 is an example where public policy was considered. In that case
the respondent was awarded damages for personal injury sustained in the
course of his employment with the appellant. After he had been injured, but
before the trial, the respondent had been convicted of cultivating Indian
hemp and served a prison sentence. Up until his imprisonment he had been
on light duties, but as he could not attend work as he was in goal, he was
dismissed by the appellant. The trial judge held that the respondent would
have still been employed by the appellant and his criminal conduct was a
result of his injuries and awarded damages for his loss of income. The
respondent’s evidence was that due to his injuries he was not able to support
his family and the growing of hemp was to supplement the family income.
Therefore, had he not been injured, he would not have had to resort to the
criminal activity and would not have been convicted and lost his job. Samuels
JA (with whom Handley JA agreed) held (at 514) that the respondent could
not be compensated for the loss of income after his conviction:
If the plaintiff has been convicted and sentenced for a crime, it means that the criminal law has
taken him to be responsible for his actions, and has imposed an appropriate penalty. He or she
should therefore bear the consequences of the punishment, both direct and indirect. If the law of
negligence were to say, in effect, that the offender was not responsible for his actions and should
be compensated by the tortfeasor, it would set the determination of the criminal court at
 nought. It would generate the sort of clash between civil and criminal law that is apt to bring the
law into disrepute.

12.83 Kirby P (at 505) gave a dissenting judgment and was of the opinion
that the respondent could be compensated for the loss of earnings:
On the shifting sands of public policy, and without the guidance of plain speaking or binding
authority, there is much room for difference of judicial opinion. Relevant to the determination
of this issue is whether the community would be affronted by the conclusion which McInerney J
reached in this case, with the advantages which he had as the trial judge. I do not believe, at least
in the circumstances here, that there would be any such affront. This is not a case where the
respondent was engaged in the much more serious offence of heroin use, still less

[page 320]

trafficking in that illegal drug. Nor is it a case where the respondent reaped any actual financial
advantage from what he did. It was open to McInerney J to find, as he did, that the resort to the
growing of Indian hemp followed, in time, the termination of workers’ compensation benefits
and the consequent actuality and future prospect of impoverishment of the respondent and his
family. It was open to him to find that the appellant thereby fell victim to temptation. For that
temptation, and the conduct which followed it, he was duly punished according to the criminal
law. His Honour plainly felt that he should not be punished twice by then being denied the
economic consequences which otherwise flowed from the injuries done to him by the negligence
of the appellant.

12.84 This case considered public policy as part of the factual causation
test as it was decided under the common law. Such considerations would now
fall under the scope of liability in the civil liability legislation. The case
demonstrates the difficulty that may arise when evaluating the normative
considerations as they will involve value judgments. See also Hunter Area
Health Service v Presland (2005) 63 NSWLR 22.

12.85 In Pledge v Roads and Traffic Authority (2004) 205 ALR 56; 78 ALJR
572 (see 12.29), three causes were identified as possibly contributing to the
plaintiff’s injuries. In discussing causation, it was held that one of the
possibilities, the danger posed by the parking bays, was so slight that it could
properly be ‘discarded from consideration in assessing legal responsibility’: at
[13]. Hayne J explained (at [10]):
The questions that are relevant to legal responsibility are first, whether, as a matter of history,
the particular acts or omissions under consideration (here the acts or omissions which led to the
presence of the foliage, and the parking bays, and the absence of warning signs) did have a role
in the happening of the accident. It is necessary then to examine the role that is identified by
reference to the purpose of the inquiry — the attribution of legal responsibility. It is at this
second level of inquiry that it may be necessary to ask whether, for some policy reason, the
person responsible for that circumstance should nevertheless be held not liable. [footnotes
omitted]

12.86 Often the normative considerations relevant to establishing the duty

of care in a novel case scenario will also be relevant to the defendant’s scope
of liability. In Harvey v PD (2004) 59 NSWLR 639, the relevant facts were that
the plaintiff, PD, became HIV-positive after she married a man who was
HIV-positive. The plaintiff and her then fiancé, FH, together consulted one of
the defendant doctors specifically for testing for sexually transmitted diseases,
including HIV. The relevant negligence was that the doctor failed to advise
that, because of legislative confidentiality requirements, they each needed to
consent to the other being told of their test results. This failure to advise
meant that, when PD was fraudulently advised by FH that his tests were also
negative, they then married and had a child. It was at this time that PD
discovered that she was HIV-positive and that she had contracted the disease
from FH.
The plaintiff successfully established that, had she known that FH could
consent to her being given his results, she would have insisted on seeing them
or would have refused to marry him. The case essentially concerned whether
PD could recover from the defendant the costs of the child care she would
eventually be unable to provide, not only for the child born of the marriage,
but also for a second child she subsequently had with another HIV-positive
man. Neither child was born HIV-positive.

[page 321]
 The New South Wales Court of Appeal unanimously held that the
defendant’s negligent failure to advise as to the confidentiality requirements
was a cause of PD’s HIV-positive status and, therefore, she could recover
child care costs for the first child when she was no longer able to provide that
care. Santow JA, with whose judgment Spigelman CJ agreed, said (at [106]):
Vulnerability is an important factor if not a prerequisite for the protection afforded by the law of
negligence, as is made clear by a long line of High Court decisions … In particular I consider
that the appellants ought not escape the consequences of their negligence by reason of FH’s
deceit, when it was itself not unforeseeable … The normative question to be asked is ought the
defendant be held liable for the harm sustained, to which the answer remains yes.

In regard to the second child, born after PD knew she was HIV-positive,
their Honours were unanimous in holding that, in common-sense terms,
PD’s doctors were responsible for PD placing herself in the position of being
likely to need child care for the second child. However, as Santow JA said (at
[124]):
That still leaves a second question, similar to the scope of duty analysis. That question is
whether the doctors “ought to be held liable to pay damages for that harm”.

His Honour then referred to comments by the High Court in the novel
duty case of Sullivan v Moody (2001) 207 CLR 562; 183 ALR 404 and
continued (at [127]):
Here there is no guiding principle which, without recourse as well to legal policy, suffices to
answer the scope of duty question. In determining what is here the proper scope of the doctors’
duty of care (or the proper scope of their liability for the consequences of its breach) one must
begin within the voluntary decision by PD to have a second child, knowing that she was HIV
positive. [emphasis added]

His Honour held that PD’s decision to have another child did not break the
chain of causation but, nevertheless, concluded, as did Spigelman CJ and Ipp
JA, that the costs of the child care for the second child were not recoverable.
An important reason for not allowing recovery of the child care costs for
the second child was the indeterminacy issue, since there was no way to limit
the number of children PD might have, or to guarantee that they would be
born HIV-free. As Ipp JA said, ‘the law should not provide an incentive to
children being born in such circumstances’: at [233]. Santow JA also said,
after referring to Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606 at
[5] and Cattanach v Melchior (2003) 215 CLR 1; 199 ALR 131, especially at
[58]–[82]:
In reaching this conclusion, I frankly acknowledge the part played by a concern which could
now fairly be described as one of legal policy if not yet legal principle, namely that of
indeterminacy. I should do so explicitly rather than mask what I am doing by mere labelling: at
[145].

See also CS v Biedrzycka [2011] NSWSC 1213, where the court referred to
the normative and policy considerations of the defendant’s scope of liability
by simply referring to the discussion of whether a duty of care was owed
(patient not informed by medical practice that results of HIV test not
resolved, transmitting the disease to the plaintiff).

[page 322]

12.87 The approach under the civil liability legislation conforms to that of
the common law. Allsop P, in Zanner v Zanner (2010) 79 NSWLR 702 at [12],
thought that it would be ‘an odd interpretation’ if the application of common
sense was excluded from the scope of liability provisions in the legislation.
Tobias J agreed, stating (at [79]):
… this Court’s determination of whether it is appropriate for the scope of the first appellant’s
liability to extend to the harm caused to the respondent, is to be considered as a matter of
common sense taking into account any relevant policy considerations that might assist in
determining whether or not, and why, responsibility for the harm to the respondent should be
imposed upon the first appellant.

12.88 In the New South Wales Court of Appeal decision of Wallace v Kam
[2012] NSWCA 82 at [12]–[13] (see 12.37), Allsop P gave detailed
consideration to s 5D(1)(b) and 5D(4) of the Civil Liability Act 2002 (NSW)
and compared the common law approach:
The enquiry and conclusion under s 5D(1)(b) involve a value judgment. In circumstances where
 s 5D(1)(a) has been satisfied, for the enquiry under (1)(b) to produce an answer that the scope
of the liability of the medical practitioner in Dr Kam’s position should not extend to the harm
that would not have occurred had he or she not been negligent, it is necessary that there be a
conclusion either of the tenuousness of the factual link or some limitation by reference to the
rule of responsibility involved. For instance, in Chappel v Hart [1998] HCA 55; 195 CLR 232 at
257 [66] and Rosenberg v Percival [2001] HCA 18; 205 CLR 434 at 460 [83], Gummow J gave the
example of harm being caused by the misapplication of an anaesthetic in an operation that
would not have taken place had the doctor disclosed some inherent medical risk. His Honour
characterised the sheeting home of liability as (Chappel at 257 [66]) an “absurd” or “unjust” or
(Rosenberg at 460 [83]) an “unacceptable” result that would prevent the law concluding that the
negligence caused the harm. This analysis was, of course, at common law under the approach
dictated by March v Stramare [(E & M H) Pty Ltd [1991] HCA 12; 171 CLR 506] in which value
judgments form part of the process of reasoning about causation. The same kinds of value
judgments attend the operation of s 5D(1)(b) (and s 5D(4)), as well as, in another context, s
5D(2). The drawing of a conclusion that a consequence of posited liability would be “unjust”,
“absurd” or “unacceptable” would be relevant to the conclusion of appropriateness for s 5D(1)
(b). Thus, to use the language of the statute, one might restate the point made by Gummow J in
his Honour’s example by asking whether it is appropriate to extend liability to the defendant
where his or her negligence only placed the plaintiff in the place at the time permitting a risk
unrelated to that involved in the duty that was breached to come home. If the ceiling of the
operating theatre falls in, if the surgeon collapses and strikes the patient, if the anaesthetist
misapplies the anaesthetic, if any of countless other things, foreseeable or unforeseeable, go
wrong with an operation, a value judgment, based on the rule of responsibility concerned
(Environment Agency v Empress Car Co (Abertillery) Ltd [1998] UKHL 5; [1999] 2 AC 22) will
have to be made, under s 5D(1)(b). It is in this enquiry that the relationship between the content
of the duty (the rule of responsibility), the nature of the risk the subject of the duty and what
harm occurred is important: March v Stramare at 516; Faulkner v Keffalinos [(1971)] 45 ALJR 80
at 86; H L A Hart and T Honoré, Causation in the Law (Oxford, 2nd Ed, 1985) at 122.

At common law, the ascription of a causal character to a factor without

which the harm would not occur, rather than of a non-causal character as a
mere condition placing the plaintiff at the place of the harm, depends
ultimately on a value judgment (that may well be contestable) made by
reference to such (overlapping and at times synonymous) factors as

[page 323]

the rule of responsibility and the legal policy underlying it, the content and
scope of the duty, the risk addressed by the rule and the duty, the character of
the breach, the foreseeability or remoteness of the harm, the intervention of
other factors (human and non-human) and their nature, and evaluative
common sense. Such considerations also find their place in the enquiry in s
5D(1)(b). Causation is part of the legal analysis concerning whether to
attribute legal responsibility and award compensation in a just and coherent
way conformable with the legal rule at hand.

12.89 On appeal to the High Court, the members of the court agreed that
the doctor was responsible for the appellant’s harm. The court held (at [36]–
[37]):
Consideration of a case involving the materialisation of one of a number of distinct risks of
different physical injuries makes it necessary to return to the nature of the duty and the policy
that underlies its imposition. The duty of a medical practitioner to warn the patient of material
risks inherent in a proposed treatment is imposed by reference to the underlying common law
right of the patient to choose whether or not to undergo a proposed treatment. However, the
policy that underlies requiring the exercise of reasonable care and skill in the giving of that
warning is neither to protect that right to choose nor to protect the patient from exposure to all
unacceptable risks. The underlying policy is rather to protect the patient from the occurrence of
physical injury the risk of which is unacceptable to the patient. It is appropriate that the scope of
liability for breach of the duty reflect that underlying policy.

The appropriate rule of attribution, or “rule of responsibility” to use the language of Allsop P, is
therefore one that “seeks to hold the doctor liable for the consequence of material risks that were
not warned of [and] that were unacceptable to the patient” (Wallace v Kam [2012] NSWCA 82
at [23], referring to Rosenberg v Percival (2001) 205 CLR 434 at [86]). The normative judgment
that is appropriate to be made is that the liability of a medical practitioner who has failed to
warn the patient of material risks inherent in a proposed treatment “should not extend to harm
from risks that the patient was willing to hazard, whether through an express choice or as found
had their disclosure been made” (Wallace v Kam [2012] NSWCA 82 at [19]).

The High Court dismissed the appeal, holding that any failure by the
doctor to warn the appellant of the risk of paralysis could not be the ‘legal
cause’ of the nerve damage (neurapraxia) that materialised: at [40].

Further Reading
 Commonwealth of Australia, Review of the Law of Negligence — Final
Report
<http://www.treasury.gov.au/ConsultationsandReviews/Reviews/2002/Review-
of-the-Law-of-Negligence>.
R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis
Butterworths, Sydney, 2013, Ch 9.
Honourable J Edelman, ‘Unnecessary Causation’ (2015) 89 ALJ 20.
H L A Hart and T Honoré, Causation in the Law, 2nd ed, Clarendon
Press, Oxford; Oxford University Press, New York, 1985.
T Honoré, ‘Medical Non-Disclosure, Causation and Risk: Chappel v
Hart’ (1999) 7 TLJ 1.

[page 324]

H Luntz, D Hambly, K Burns, J Dietrich and N Foster, Torts: Cases and

Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2012, Chs 4
and 5.
J Stapleton, ‘Lords a’Leaping Evidentiary Gaps’ (2002) 10 TLJ 276.
—, ‘Causation-in-Fact and the Scope of Liability for Consequences’
(2003) 119 LQR 388.
—, ‘Factual Causation’ (2010) 38 Fed L Rev 467.

1. Commonwealth of Australia, Review of the Law of Negligence — Final Report (the Ipp Report),
October 2002, available at
<http://www.treasury.gov.au/ConsultationsandReviews/Reviews/2002/Review-of-the-Law-of-
Negligence> (Recommendation 29).
2. T Honoré, ‘Medical Non-Disclosure, Causation and Risk: Chappel v Hart’ (1997) 7 TLJ 1 at 8.
3. See, for example, H L A Hart and T Honoré, Causation in the Law, 2nd ed, Clarendon Press,
Oxford; Oxford University Press, New York, 1985.
4. Commonwealth of Australia, Review of the Law of Negligence — Final Report (the Ipp Report),
 October 2002, available at
<http://www.treasury.gov.au/ConsultationsandReviews/Reviews/2002/Review-of-the-Law-of-
Negligence>.
5. Commonwealth of Australia, Review of the Law of Negligence — Final Report (the Ipp Report),
October 2002, available at
<http://www.treasury.gov.au/ConsultationsandReviews/Reviews/2002/Review-of-the-Law-of-
Negligence>.
6. Commonwealth of Australia, Review of the Law of Negligence — Final Report (the Ipp Report),
October 2002, available at
<http://www.treasury.gov.au/ConsultationsandReviews/Reviews/2002/Review-of-the-Law-of-
Negligence>.
7. H L A Hart and T Honoré, Causation in the Law, 2nd ed, Clarendon Press, Oxford; Oxford
University Press, New York, 1985, p 136.
8. Commonwealth of Australia, Review of the Law of Negligence — Final Report (the Ipp Report),
October 2002, available at
<http://www.treasury.gov.au/ConsultationsandReviews/Reviews/2002/Review-of-the-Law-of-
Negligence>.
[page 325]
 Chapter 13

Defences to Negligence

1 Introduction
13.1 If a plaintiff successfully establishes the elements of negligence, the
onus is then upon the defendant to prove any defences. There are three main
defences to an action of negligence:
contributory negligence;
volenti non fit injuria; and
joint illegal enterprise.
In addition to these defences, the civil liability legislation has introduced
immunity from civil liability in certain circumstances. It is also possible for
parties in a contractual relationship to agree to limit or exclude liability, a
matter of interpretation of contract law. It is also possible that the relevant
limitation period to bring the action in negligence has expired, providing the
defendant with a defence: see Chapter 14.

2 Contributory Negligence
The Common Law Position
13.2 At common law, the defence of contributory negligence was a
complete defence: Williams v Commissioner for Road Transport (1933) 50
CLR 258. If the defendant established that the plaintiff’s own negligence
contributed to the harm suffered, the plaintiff was denied a remedy. The
negligence of the plaintiff took the form of either a breach of a duty to the
defendant, or failure to take care for his or her own safety: Nance v British
Columbia Electric Railway Co Ltd [1951] AC 601.
For example, in Butterfield v Forrester (1809) 11 East 60; 103 ER 926, the
defendant put a pole across part of the road outside his house so he could
effect repairs to his house without interference from the road. The plaintiff
was injured when, at twilight, he rode his horse into the pole. The plaintiff
was riding his horse at speed while drunk. Lord Ellenborough CJ stated (at
East 61; ER 927):
Two things must concur to support this action, an obstruction in the road by the fault of the
defendant, and no want of ordinary care to avoid it on the part of the plaintiff.

[page 326]

It was held that the plaintiff had failed to take ordinary care for his own
safety; therefore, his action failed and no damages were awarded.
As any amount of contributory negligence by the plaintiff denied any
recovery to an otherwise blameless injured party, the rule operated very
harshly. Therefore, its application was qualified in a number of ways by the
courts to ameliorate this harshness.

‘Last opportunity’ rule

13.3 The ‘last opportunity’ rule was created, under which full recovery was
still permitted by the plaintiff, particularly when at the material time there
was substantial disparity in the positions of plaintiff and defendant. It was fair
and reasonable not to regard the plaintiff as the author of his or her own
injuries, notwithstanding some negligence, if the defendant had the ‘last
opportunity’ to avoid the harm.
In Alford v Magee (1952) 85 CLR 437, the Australian High Court required
the existence of a real opportunity of avoiding the damage which a reasonable
person would have taken. The appropriate test became whether the defendant
had the last real chance or opportunity to avoid the damage, but the test was
not definitive.

‘Agony of the moment’ principle

13.4 A second means of avoiding the harsh application of the defence at
common law was to apply the ‘agony of the moment’ principle. Under this
principle, regard was had to the fact that the plaintiff may have been
compelled to momentarily act negligently in the ‘agony of the moment’ due
to a situation created originally, or substantially, by the defendant’s
negligence: Municipal Tramways Trust v Ashby [1951] SASR 61.

Modern Contributory Negligence

13.5 In Joslyn v Berryman (2003) 214 CLR 552; 198 ALR 137 at [16],
McHugh J stated:
… a plaintiff is guilty of contributory negligence when the plaintiff exposes himself or herself to
a risk of injury which might reasonably have been foreseen and avoided and suffers an injury
within the class of risk to which the plaintiff was exposed.

The common law rules concerning contributory negligence as a complete

defence have been replaced by statutory schemes that allow an apportionment
of damages to take into account any negligence on the part of the plaintiff.
Therefore, modern contributory negligence is not actually a defence. Instead,
the apportionment legislation provides a scheme by which the damages
recoverable by the plaintiff are reduced, based upon the plaintiff’s share of the
responsibility for the damage. However, it is conventionally treated as a
defence, usually referred to as a ‘partial defence’, and is included in this
chapter for that reason. The civil liability legislation has also modified
contributory negligence, imposing presumptions in specific circumstances:
see 13.27.
13.6 The apportionment legislation abolishes the common law rule that
contributory negligence defeats a claim. Section 10(1) of the Law Reform Act
1995 (Qld) states:

[page 327]

If a person (the claimant) suffers damage partly because of the claimant’s failure to take
reasonable care (contributory negligence) and partly because of the wrong of someone else —
(a) a claim in relation to the damage is not defeated because of the claimant’s contributory
negligence; and
(b) the damages recoverable for the wrong are to be reduced to the extent the court
considers just and equitable having regard to the claimant’s share in the responsibility
for the damage.

See Civil Law (Wrongs) Act 2002 (ACT) s 102(1); Law Reform
(Miscellaneous Provisions) Act 1965 (NSW) s 9(1); Law Reform
(Miscellaneous Provisions) Act 1956 (NT) s 16(1); Law Reform (Contributory
Negligence and Apportionment of Liability) Act 2001 (SA) s 7(1), (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).
The term ‘wrong’ in relation to the conduct of the defendant is defined in s
5 of the Queensland Act to mean:
… an act or omission that —
(a) gives rise to a liability in tort for which a defence of contributory negligence is available
at common law; or
(b) amounts to a breach of a contractual duty of care that is concurrent and coextensive with
a duty of care in tort.

See Civil Law (Wrongs) Act 2002 (ACT) s 101; Law Reform (Miscellaneous
Provisions) Act 1965 (NSW) s 8; Law Reform (Miscellaneous Provisions) Act
1956 (NT) s 15(1); Law Reform (Contributory Negligence and
Apportionment of Liability) Act 2001 (SA) s 3 (‘negligent wrongdoing’);
Wrongs Act 1954 (Tas) s 2 (‘wrongfulact’); Wrongs Act 1958 (Vic) s 25; Law
Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947
(WA) s 3A (‘negligence’). The definition of ‘wrong’ and its equivalent terms
was amended to include a breach of a contractual duty that is concurrent and
coextensive with a duty of care in tort after the High Court decision of Astley
v Austrust Ltd (1999) 197 CLR 1; 161 ALR 155 held that the apportionment
legislation did not apply to a claim for a breach of contract (failure to exercise
reasonable care as an implied term of the contract) where the claimant was
contributory negligent.

Establishing Contributory Negligence

13.7 When considering contributory negligence, it is not necessary that the
plaintiff owe the defendant a duty of care:
Contributory negligence differs from negligence. There is no duty of care owed to another
person … and contributory negligence involves conduct which exposes the actor to the risk of
injury without necessarily exposing others to risk: Commissioner of Railways v Ruprecht (1979)
142 CLR 563 at 570; 25 ALR 481 at 487 per Mason J.

A defendant who alleges contributory negligence must prove:

the plaintiff failed to take reasonable care; and
the failure contributed to the foreseeable injury or loss suffered by the
plaintiff.

[page 328]

Plaintiff failed to take reasonable care

13.8 Whether a plaintiff has failed to exercise reasonable care is a question
of fact that is judged in light of all of the circumstances. The standard is an
objective one: Joslyn v Berryman (2003) 214 CLR 552; 198 ALR 137 at [39].

13.9 However, despite the application of the objective test to determine the
standard, it has been noted that a more lenient standard of care was applied
to plaintiffs: Commissioner of Railways v Ruprecht (1979) 142 CLR 563 at
577–8 per Murphy J; Caterson v Commissioner for Railways (1973) 128 CLR
99. To overcome this leniency in favour of the plaintiff, it was recommended
by the Ipp Report1 that it be legislated that contributory negligence was to be
assessed against the same objective standard as applies in establishing breach
by the defendant: Ipp Report at [8.11]–[8.13].
Section 23 of the Civil Liability Act 2003 (Qld) states:
(1) The principles that are applicable in deciding whether a person has breached a duty also
apply in deciding whether the person who suffered harm has been guilty of contributory
negligence in failing to take precautions against the risk of that harm.
(2) For that purpose —
(a) the standard of care required of the person who suffered harm is that of a reasonable
person in the position of that person; and
(b) the matter is to be decided on the basis of what that person knew or ought reasonably
to have known at the time.

See also Civil Liability Act 2002 (NSW) s 5R; Civil Liability Act 1936 (SA) s
44; Civil Liability Act 2002 (Tas) s 23; Wrongs Act 1958 (Vic) s 5K; Civil
Liability Act 2002 (WA) s 5K. There are no equivalent provisions in the
legislation of the Australian Capital Territory and the Northern Territory.

13.10 The relevant standard of care may take into account characteristics
of the plaintiff, as is done in an action of negligence, to achieve the reasonable
standard of a person in the position of the plaintiff: see Chapter 11.

13.11 Children A child plaintiff will be judged according to the standard

of a child of the same age, intelligence and experience: McHale v Watson
(1966) 115 CLR 199.
In New South Wales v Griffin [2004] NSWCA 17, the 13-year-old
respondent was found not to be contributory negligent by participating in a
fight with another student at school. The court held that the peer pressure on
the respondent to fight would have been very strong, as the whole school was
aware of the intended confrontation. Ipp J stated (at [9]):
 The proposition that in those circumstances the respondent should not have turned up to fight
the other boy is, in my view, quite unreasonable. Had he taken this course he would have had to
face the charge of cowardice and he would have become notorious throughout the school.

[page 329]

In my view the standard of conduct suggested bears no relationship with what should be
expected of a 13 year old boy.

In Doubleday v Kelly [2005] NSWCA 151, the plaintiff, aged seven, was
injured when she attempted to roller skate on a trampoline when visiting a
friend’s home. At the time of the accident, the plaintiff was unsupervised by
the defendants, the parents of the friend. The day before the accident, the
defendants had warned the children not to go near the trampoline. The trial
judge held that there was no contributory negligence on the part of the
plaintiff when her age and experience were taken into account, citing McHale
v Watson, above, and s 5R of the Civil Liability Act 2002 (NSW). The Court of
Appeal agreed, holding that the provision did not alter the common law
position and that a seven-year-old child would not have perception of the
danger: at [26].
In Waverley Council v Ferreira (2005) Aust Torts Reports ¶81-818, the
court referred, with approval, to Doubleday v Kelly and held that a 12-year-
old boy would not perceive the danger in climbing onto the roof of a building
and sitting on a skylight. See also Manly Council v Byrne [2004] NSWCA 123,
where the Court of Appeal agreed with the trial judge’s reasoning that the 13-
year-old plaintiff had failed to take reasonable care of her own safety when
diving into a public pool. There was evidence that she had ‘extensive training
and experience in water activities’ (at [113]) and had dived into a pool when
she could not see its depth and without checking its depth.
In Verryt v Schoupp (2015) 70 MVR 484, the respondent was two months
from turning 13 years old when he was seriously injured while skitching
(holding onto a motor vehicle as he rode his skateboard). The car was being
driven by the father of one of the respondent’s friends and the respondent
was not wearing a helmet. The respondent fell off his skateboard and hit his
head on the road. The appeal court held that the respondent’s appreciation of
the risk involved in skitching was to be assessed at the time of the incident,
not after with the benefit of hindsight. In respect of the behaviour of a 12-
year-old boy, Meagher JA delivering the judgment for the court, stated (at
[61]–[62]):
… a reasonable 12-year-old in his position would have appreciated was dangerous; in each case
because of the risk of losing balance at speed and landing awkwardly on the roadway.

At the same time it may readily be accepted, as was emphasised in McHale, that a 12-year-old
boy is unlikely to perceive as a realistic prospect the risk of a serious injury such as was sustained
by the respondent. A 12-year-old is optimistic and likely to be oblivious to the real and ever-
present prospect of such an injury. In the somewhat wistful language of Kitto J, that degree of
sense and circumspection is one ‘which nature ordinarily withholds till life has become less
rosy’.

The court found that the respondent had failed to act with reasonable care
in the circumstances.

13.12 Intoxication The civil liability legislation creates a presumption of

contributory negligence if the plaintiff was intoxicated: see 13.33. However, if
the legislation does not apply, the law is that an intoxicated plaintiff is to be
judged against the standard of a reasonable sober person: Joslyn v Berryman
(2003) 214 CLR 552; 198 ALR 137.
In the High Court decision of Joslyn v Berryman (2003) 214 CLR 552; 198
ALR 137, one of the issues the court had to consider was whether the
respondent was guilty of

[page 330]

contributory negligence at common law. The appellant and respondent had

been at a party, the respondent had arrived at 9.00 pm, had drunk until 4.00
am and then had gone to sleep in his utility. The appellant also was drinking
at the party and the evidence was that, at about 4.30 am, she was seen to be
‘quite drunk and staggering about’: at [9]. She then went to sleep next to the
respondent’s utility. When they woke up, about three hours later, they
travelled together to Mildura to have breakfast. On the way back from
breakfast, the appellant noticed the respondent (who was driving) was dozing
off so they stopped and the appellant took over the driving. She did not have a
driver’s licence, having lost it for drink driving over three years previously.
Shortly after taking over the driving, the appellant lost control of the vehicle
and the respondent suffered severe injuries.
The court held that it was not a question of whether a reasonable person in
the intoxicated passenger’s condition would realise the risk of accepting a
risk, but whether an ordinary reasonable person — a sober person — would
have foreseen that accepting a lift from an intoxicated driver would expose
them to risk of injury. It was held to be irrelevant that intoxication meant that
the plaintiff could not appreciate the risk of harm: at [39].
It was held that a reasonable person would have foreseen that, as a
passenger in a car driven by the appellant, they would be exposed to the risk
of serious injury. The evidence was that the vehicle was defective (it had a
tendency to roll and the speedometer was broken), combined with the fact
that the appellant had not driven for over three years, she had drunk a large
amount of alcohol and had had very little sleep, indicating that she was unfit
to drive. Therefore, the respondent was found to be guilty of contributory
negligence. The matter was resubmitted to the New South Wales Court of
Appeal, where it was held that the respondent’s damages should be reduced
by 60 per cent rather than the original decision of reducing them by 25 per
cent: Berryman v Joslyn; Wentworth Shire Council v Joslyn [2004] NSWCA
121.

13.13 It is the relevant facts and circumstances that a reasonable person

would have observed or otherwise that will be relevant in determining what
could have been expected from the plaintiff in the circumstances. Ignorance
of facts that a reasonable person would have ascertained does not allow a
plaintiff to escape a finding of contributory negligence.

13.14 Emergency It may be that a sudden emergency created by the

defendant renders the plaintiff’s conduct reasonable in the circumstances.
This is sometimes described also as the doctrine of alternative danger
(Caterson v Commissioner of Railways (1973) 128 CLR 99 per Gibbs J) or the
rule in The Bywell Castle (after Lord Justice Cotton’s statement of the rule in
the shipping case London Steamboat Co v Bywell Castle (owners of) (1879) 4
PD 219 at 228). For example, in Shelley v Szelley [1971] SASR 430 at 432, Bray
CJ (with whom Sangster AJ agreed on this point) said:
… the conduct of the party acting in an emergency may be viewed with more latitude, since in
such cases there is almost an element of estoppel: “it is not in the mouth of those who have
created the danger of the situation to be minutely critical of what is done by those whom they
have by their fault involved in danger” … If this is correct then the [plaintiff’s] conduct would
be viewed more indulgently than that of the [defendant], once granted that the [defendant] was
guilty of negligence prior to the [plaintiff] seizing the wheel, which negligence was in part at
least the cause of what the [plaintiff] did.

[page 331]

In that case, the plaintiff had been a passenger in the defendant’s car and
was dozing in the front passenger seat when one of the car’s tyres burst. The
defendant took his foot off the accelerator and waited for the car to slow
down without applying the brakes. The plaintiff woke up and saw that the car
was heading off the road on the wrong side, and commented it was going off
the road. The defendant smiled at the plaintiff without speaking. The plaintiff
then grabbed the steering wheel of the car causing the car to run off the road
and overturn, injuring the plaintiff.
The Full Court of the Supreme Court of South Australia held unanimously
that the defendant had been negligent and that the plaintiff had not been
guilty of contributory negligence.

13.15 Employment The courts are particularly conscious, when dealing

with cases involving employment relationships, to ensure due recognition is
taken of the employer’s responsibility in respect of the place and system of
work: Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234. This is
reflected in cases where employee conduct is characterised as mere
inattention rather than contributory negligence: McLean v Tedman (1984)
155 CLR 306; 56 ALR 359; Commissioner of Railways v Ruprecht (1979) 142
CLR 563; 25 ALR 481. In Hughes v Tucaby Engineering Pty Ltd [2011] QSC
256 at [19] it was noted:
It is necessary then that the defendants point to something, other than an everyday risk that is
commonly avoided, as justifying a finding of contributory negligence.

In that case, the plaintiff was injured at work when he stepped over a low-
slung chain hanging across a doorway that was used to bring machinery into
the workshop. The defendant argued that the plaintiff was contributory
negligent as he had failed to use an alternative and available means of egress
from the workshop. It was also alleged that he could have removed the chain
from the hook to walk through or ducked under the chain or that the plaintiff
by not breaking his stride caused the fall. The Queensland Supreme Court
held that the plaintiff was not contributory negligent in taking the most direct
and shortest route to access the machinery, stating (at [25]):
… was he obligated to pause, consider and carefully weigh up the issue? I cannot see that the
exercise of reasonable care requires that much. There first needed to be some trigger to make
him realise that he ought to pause and weigh up things before simply stepping forth. The
defendants had not thought to issue any instruction to workers concerning the chain as a
particular hazard. Why should that reasonably be expected to occur to a worker in the course of
his working day and when engrossed in his task?

13.16 The preferential treatment has even extended to cases where the
plaintiff employee knows the conduct is highly dangerous, but it is still not
held to be contributory negligence unless the employee knew, or ought to
have known, that his or her highly dangerous conduct was not part of his or
her duties: Commissioner for Railways v Halley (1978) 20 ALR 409. See also
Czatyrko v Edith Cowan University (2005) 214 ALR 349; Osborne v Downer
EDI Mining Pty Ltd [2010] QSC 470.

13.17 Breach of the standard Once the standard required of the plaintiff
has been determined, the calculus of negligence will be relevant in answering
the question of whether the plaintiff was negligent in the circumstances: see
13.8. Evidence would be required as to the probability and seriousness of
harm, the burden of taking precautions and the social utility of the activity,
among other relevant things: see Chapter 11.

[page 332]

13.18 As with an action in negligence, the conduct of the plaintiff should

not be assessed with the benefit of hindsight. For example, in Hirst v Nominal
Defendant [2005] 2 Qd R 133, the plaintiff police officer was injured when
pursuing an unidentified vehicle at high speed. The Court of Appeal agreed
with the trial judge’s statement that with ‘the benefit of hindsight … a pursuit
was unreasonably taken’: at [39]. However, in the circumstances, it was held
that:
… the decision to persist in the pursuit was deliberate. It was a decision which only Mr Hirst
could make in the sense that it was part of his duty to make it. It was a decision which he was
trained to make and he admitted that he was conversant with the policy in the Operations
Manual which informed him of the need to make his decision on the basis that the paramount
consideration was the safety of all users of the road. It was a decision with significant
consequences for the safety of all users of the highway including himself. The making of this
decision was very much part of his duty. He knew there was the vehicle in front of him (being
driven by Mr Weldon) and, because of the topography he did not know whether there was a
vehicle coming the other way, as in fact there was. In these circumstances, I consider that the
learned primary judge was correct to conclude that this decision further to escalate the danger
was unreasonable, and not merely an error of judgment: at [44].

The plaintiff was held to be contributory negligent with one third of

liability apportioned against him.

Causation and foreseeability

13.19 In proving causation, the evidence must show that the plaintiff’s
failure to take reasonable care contributed to their loss, in that either the loss
would have been avoided or reduced. This is a question of fact that requires
the application of common sense. In Fitzgerald v Penn (1954) 91 CLR 268 at
277, it was stated by the majority, ‘[a] jury probably does not need to be told
that the absence of a tail light could not operate to cause a head-on collision
even at night’.
A plaintiff’s conduct may be causally relevant in three ways:
1. The plaintiff’s own carelessness is the cause of the accident. In
Griffiths v Doolan [1959] Qd R 30, the accident was caused by a
child plaintiff running on to the road. See also Axiak v Ingram
[2011] NSWSC 1447. In Poole v State Transport Authority (Rail
Division) (1982) 31 SASR 74, a passenger jumped from a train.
2. The plaintiff’s conduct increased the risk of the harm. In Azzopardi
v State Transport Authority (Rail Division) (1982) 30 SASR 434, the
risk of injury was increased by the fact that the bus passenger failed
to use the hand grip.
3. The plaintiff’s conduct aggravated the damage caused by the
defendant’s negligence. A common example is the failure to use a
safety device. In Eagles v Orth [1975] Qd R 197, the plaintiff was not
wearing a safety belt in a car and in Kirk v Nominal Defendant
[1984] 1 Qd R 592, a pillion passenger was not wearing ‘tough
clothing’.

13.20 It is not necessary that the plaintiff’s negligence contributed in any

way to the accident itself, only the harm suffered: O’Connell v Jackson [1971]
3 All ER 129 (plaintiff found to be contributory negligent although their
failure to wear safety helmet did not itself
 [page 333]

contribute to the accident). See also Froom v Butcher [1976] QB 286;

Hallowell v Nominal Defendant (Qld) [1983] 2 Qd R 266.
In Monie v Commonwealth [2007] NSWCA 230, the appellant had relied
upon the assistance of the Commonwealth Employment Service (CES) to find
an employee for his family farm. The person who applied, Winsor, was
interviewed briefly before being hired. Winsor had a criminal record,
including a term of imprisonment for assault occasioning bodily harm from
which he had only recently been released. This information was not provided
to the appellant. After three months of working on the farm, Winsor shot the
appellant four times. The appellant sued the respondent in negligence,
alleging that there had been a breach of duty by the CES in failing to disclose
Winsor’s criminal history. The trial judge held that the appellant had failed to
make reasonable enquiries about Winsor and, therefore, was contributory
negligent.
On appeal, it was found that the appellant had been careless by failing to
ask Winsor about his previous work experience and whether he had the skills
necessary for farm work. However, that carelessness was linked to the
appellant’s economic interests and was not causally connected to the loss
suffered by the appellant: at [99].
In Gent-Diver v Neville [1953] St R Qd 1, the plaintiff accepted a lift with
the defendant knowing that the headlights of the motorbike were not in
working order. The plaintiff was injured in an accident on the motorbike, but
was found not to be contributory negligent as the accident was due to the
defendant failing to drive reasonably, not the defective headlights. See also
Ragg v Palmer [2016] NSWDC 14 (no evidence that a failure by 11-year-old
plaintiff to wear seatbelt contributed to the leg injuries suffered from being
thrown against a fence).
Apportionment
13.21 Upon a finding of contributory negligence, the apportionment
legislation directs the court to reduce the damages recoverable to the extent it
thinks ‘just and equitable’, having regard to the plaintiff’s share in the
responsibility for the damage: see 13.6. In Western Australia, it is to the
extent the court thinks ‘just in accordance with the degree of negligence
attributable to the plaintiff’: Law Reform (Contributory Negligence and
Tortfeasors Contribution) Act 1947 (WA) s 4(1).

‘Just and equitable’

13.22 In determining what is ‘just and equitable’ in the circumstances, the
court has a wide discretion. The court will assess and compare the culpability
of the plaintiff and the defendant in terms of departure from the standard of
reasonable care: Pennington v Norris (1956) 96 CLR 10; Podrebersek v
Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; 59 ALJR 492. In
Pennington v Norris, culpability was explained (at 16):
It seems clear that this must of necessity involve a comparison of culpability. By “culpability” we
do not mean moral blameworthiness but degree of departure from the standard of care of the
reasonable man. 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 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 merely of his own safety.

[page 334]

13.23 In Pennington v Norris, the plaintiff claimed damages for personal

injuries sustained when he was struck by the motor vehicle driven by the
defendant. The trial judge apportioned culpability 50/50 but, on appeal, in
assessing what was ‘just and equitable’ apportionment, the High Court found
the comparison of culpability to be 20/80. The court was influenced by
various factors surrounding the accident, not just the conduct of the parties.
It was noted by the court that the accident took place on a misty night after it
had been raining. The defendant’s windscreen was misty on the inside and
the outside, impairing visibility. It was closing time of pubs, there being three
pubs in the vicinity, and there were quite a number of people about in the
area. At the time of the accident, the defendant was travelling at 30 miles per
hour. The court thought that whereas the plaintiff’s conduct exposed himself
to risk of injury, the defendant’s conduct exposed not only the plaintiff but
also others to a risk of injury.
The following remarks were made (at 16):
Here, in our opinion, the negligence of the defendant was in a high degree more culpable, more
gross, than that of the plaintiff. The plaintiff’s conduct was ex hypothesi careless and
unreasonable but, after all, it was the sort of thing that is very commonly done: he simply did
not look when a reasonably careful man would have looked. We think too that in this case the
very fact that his conduct did not endanger the defendant or anybody else is a material
consideration. The defendant’s position was entirely different.

13.24 The principles stated in Pennington v Norris were added to in

Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 at 532–3; 59
ALJR 492 at 494, where the High Court unanimously adopted the following
embellishment:
The making of an apportionment as between a plaintiff and a defendant of their respective
shares in the responsibility for the damage involves a comparison both of culpability, ie, of the
degree of departure from the standard of care of the reasonable man (Pennington v Norris
(1956) 96 CLR 10 at 16) … and of the relative importance of the acts of the parties in causing the
damage … It is the whole conduct of each negligent party in relation to the circumstances of the
accident which must be subjected to a comparative examination.

In Schimke v Clements (2011) 58 MVR 390, the plaintiff’s husband was

killed when the car he was driving collided with a trailer being towed by the
defendant’s vehicle. The accident took place on a single lane bridge — at the
south end of the bridge there was a give way sign, at the north end a sign
stating no overtaking or passing. The court found that both drivers had failed
to exercise reasonable care when driving. The deceased driver had failed to
exercise reasonable care to avoid a collision with a vehicle approaching the
bridge and the defendant had failed to act reasonably by driving at an
excessive speed for the circumstances and assuming that the other vehicle
would stop at the give way sign. Applegarth J assessed the deceased driver’s
responsibility at 65 per cent and the defendant’s at 35 per cent, stating (at
[64]–[66]):
I accept that the negligence of each driver arose, in part, because of errors of judgment about the
conduct of the other vehicle and, unreasonably in the circumstances, each driver assumed that
he was not required to yield way to the other. However, the task of apportioning liability

[page 335]

is not resolved simply by characterizing each driver as having committed a similar, serious error
of judgment. I do not accept the plaintiff’s submission that this is a case that calls for equal
apportionment once I find that the deceased was not entitled to proceed across the bridge in the
circumstances. I consider that the deceased’s departure from the standard of care required of
him was greater than the departure from the standard of care required of the first defendant.

Even if the deceased’s failure to yield right of way was not a contravention of s 70 of the
[Transport Operations (Road Use Management — Road Rules) Regulation 1999 (Qld)], as
literally construed, it was a serious departure from the standard to be expected of a driver in his
position.

Apportionment is not determined by the obvious fact that if the deceased had yielded right of
way the collision would have been avoided, any more than the fact that the collision would have
been avoided had the first defendant reduced his speed sooner and kept his vehicle and trailer
under control so that he could bring both units to a halt and avoid a collision. Still, the
deceased’s negligence was causatively potent because it committed him to the course of
attempting to reach the other side of the bridge. Although it was not negligent of him to fail to
stop on the bridge, his decision to cross the bridge led him to a further decision to attempt to
complete the crossing. His negligent failure to yield right of way literally led him into a danger
zone in which he had limited options to avoid a head on collision.

The reasonableness of the conduct must be judged in the light of all the
circumstances: Joslyn v Berryman (2003) 214 CLR 552; 198 ALR 137; Morton
v Knight [1990] 2 Qd R 419; Caterson v Commissioner for Railways; Sibley v
Kais (1967) 118 CLR 424; Sungravure Pty Ltd v Meani (1964) 110 CLR 24. In
Verryt v Schoupp (2015) 70 MVR 484, the appellant appealed the finding of
the trial judge that the defence of contributory negligence failed as
apportionment was assessed as 100 per cent to the appellant. On appeal the
court noted the respondent’s appreciation of the danger of participating in
skitching as a 12-year-old, but took into account the fact that an adult — the
appellant driver — was condoning the activity. It was noted (at [62]):
It is also the case, as the primary judge rightfully emphasised, that a 12-year-old boy would likely
gain comfort from the fact that the activity was one that the adult father of his neighbourhood
friend had agreed to participate in. That participation would have confirmed in the boy’s mind
that the activity did not involve unacceptable risks of injury.

As to the appellant’s conduct, the court held (at [63]–[64]):

Most importantly, the appellant was responsible for the safe operation of the vehicle. He must be
taken to have appreciated that “skitching” involved significant risks of injury, including of the
kind that occurred. As the driver of the vehicle, the appellant was in the position to prevent the
activity and should not have allowed it to occur. Not only did he fail in that respect; he also
allowed it to proceed aware that none of the boys was wearing a helmet.

For these reasons, the appellant must bear by far the greater responsibility for the injuries
sustained by the respondent. … A sufficient allowance for the respondent’s lack of care for his
own safety is reflected in a reduction of his damages by 10 percent.

[page 336]

Contributory negligence may defeat a claim

13.25 In Wynbergen v Hoyts Corporation Pty Ltd (1997) 149 ALR 25; 72
ALJR 65, it was held that it was not possible to apportion 100 per cent to a
party under the New South Wales apportionment legislation. The High Court
held (at ALR 29; ALJR 68) that:
… no matter how culpable the claimant may be, if the damage results from the fault of the
person who suffers the damage and the fault of another, it is not possible to say that the damages
recoverable in respect of that damage are to be not simply reduced but are to be entirely
eliminated. Such an outcome cannot be justified as “just and equitable having regard to the
claimant’s share in the responsibility for the damage” for it is an outcome which holds the
claimant wholly responsible, not partly so.

Before this decision, it was thought that it was within the jury’s or court’s
discretion to apportion within the full range from 0–100 per cent: see
Chapman v Hearse (1961) 106 CLR 112 at 123.

13.26 The civil liability legislation, in some jurisdictions, has reintroduced

the possibility of 100 per cent apportionment. For example, s 24 of the Civil
Liability Act 2003 (Qld) states:
In deciding the extent of a reduction in damages by reason of contributory negligence, a court
may decide a reduction of 100% if the court considers it just and equitable to do so, with the
result that the claim for damages is defeated.

See also Civil Law (Wrongs) Act 2002 (ACT) s 47; Civil Liability Act 2002
(NSW) s 5S; Wrongs Act 1954 (Tas) s 4(1); Wrongs Act 1958 (Vic) s 63.
Therefore, it is technically possible that a defence of contributory
negligence may defeat a claim. Although no decision has yet successfully
imposed a reduction of 100 per cent for contributory negligence, a few
defendants have argued its application. See Harmer v Hare (2011) 59 MVR 1,
where the defendant argued that a finding of 100 per cent contributory
negligence was appropriate in the circumstances. The defendant had allowed
the plaintiff to drive his car in wet conditions knowing it had bald tyres and
the defendant, basing the arguments on the findings of the trial judge that the
state of the tyres was apparent, argued that a reasonable person in the
position of the plaintiff would have known or ought to have known that the
only precaution to avoid the risk of harm was not to drive the vehicle. The
trial judge’s findings as to contributory negligence were overturned, the court
holding that it was not negligent of the plaintiff not to have inquired as to the
vehicle’s condition or to have failed to inspect it before driving. Special leave
to appeal was refused by the High Court: [2012] HCASL 21. See also Davis v
Swift (2014) 69 MVR 375 (100 per cent reduction altered to 80 per cent upon
appeal as ‘in the range of possible departures from that standard of care, the
appellant’s conduct is not an example of a worst possible case’: at [52]).

Legislative Presumptions of Contributory

Negligence
13.27 Legislation exists, in all jurisdictions, which requires a finding of
contributory negligence in certain circumstances, and may even specify the
percentage by which the plaintiff’s damages are to be reduced. Usually, the
circumstances involve the use of a motor vehicle.

[page 337]

Failing to use a required safety device

13.28 Under normal circumstances, a failure to use or wear safety
equipment, such as a seatbelt or safety helmet, will be an important factor if
the lack of the safety device contributed to the plaintiff’s injuries: Eagles v
Orth [1975] Qd R 197; Hallowell v Nominal Defendant (Qld) [1983] 2 Qd R
266.

13.29 In some motor vehicle legislation, it is required for a court to make a

finding of contributory negligence if the plaintiff was not wearing a seatbelt
or safety helmet at the time of the accident. For example, s 138(2)(c) of the
Motor Accidents Compensation Act 1999 (NSW) mandates a finding of
contributory negligence and a reduction in damages as the court thinks ‘just
and equitable’ if the plaintiff is not a minor. See also Civil Law (Wrongs) Act
2002 (ACT) s 97 (presumption of contributory negligence of persons over age
of 16 and damages reduced as is just and equitable); Civil Liability Act 1936
(SA) s 49 (presumption of contributory negligence and damages to be
reduced by 25 per cent); Motor Accidents (Liabilities and Compensation) Act
1973 (Tas) s 22(3) and (4) (damages reduced by 15 per cent or more if just
and equitable if plaintiff over 16 years and not wearing a seatbelt). See Allen v
Chadwick (2015) 326 ALR 505 (plaintiff’s damages reduced by 25 per cent for
failing to wear a seatbelt).
13.30 In those jurisdictions where a finding of contributory negligence is
required but no fixed statutory reduction is specified, a court may still reduce
the damages by zero if it is just and equitable in the circumstances: Nicholson
v Nicholson (1994) Aust Torts Reports ¶81-310.

Intoxication and drugs

13.31 If a plaintiff is injured and either they or the defendant were
intoxicated at the time, the defendant may raise the defence of contributory
negligence. The basis for such an allegation would be that, by being under the
influence of alcohol or drugs, the plaintiff failed to take reasonable care of
their own safety or the plaintiff was negligent by relying on an intoxicated
person.

13.32 Courts have grappled with the application of contributory

negligence when intoxication was involved. Many jurisdictions have
legislated that there is a presumption of contributory negligence if the claim
involves an intoxicated party.

13.33 As to the meaning of ‘intoxication’, all of the definitions in the civil

liability legislation refer to some impairment of the plaintiff’s capacity to
exercise care. Schedule 2 of the Civil Liability Act 2003 (Qld) defines
‘intoxicated’ to mean:
… that the person is under the influence of alcohol or a drug to the extent that the person’s
capacity to exercise proper care and skill is impaired.

As to other jurisdictions, see:

Civil Law (Wrongs) Act 2002 (ACT) s 92 (‘under the influence of
alcohol or a drug to the extent that the person’s capacity to exercise
appropriate care and skill is impaired’);
Civil Liability Act 2002 (NSW) s 48 (‘under the influence of alcohol or
a drug (whether or not taken for a medicinal purpose and whether or
not lawfully taken)’);
 [page 338]

Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 3 (‘under

the influence of alcohol or a drug to the extent that the capacity to
exercise proper care and skill is significantly impaired’) and s 16 (blood
alcohol content of 0.08 or more grams per 100 ml of blood is
conclusive evidence that the plaintiff’ was intoxicated);
Civil Liability Act 1936 (SA) s 3 (‘under the influence of alcohol or a
drug to the extent that the person’s capacity to exercise due care and
skill is impaired’);
Civil Liability Act 2002 (Tas) s 5(5), (6) (‘under the influence of alcohol
or a drug (whether or not taken for a medicinal purpose and whether
or not lawfully taken)’ unless the person satisfies the court that they
were ‘not aware of the effect of the drug taken’); and
Civil Liability Act 2002 (WA) s 5L(4) (‘affected by alcohol or a drug or
other substance capable of intoxicating a person to such an extent that
the person’s capacity to exercise reasonable care and skill is impaired’).
There is no definition of ‘intoxication’ in the Wrongs Act 1958 (Vic).

13.34 Plaintiff intoxicated The civil liability legislation in all jurisdictions,

except New South Wales and Victoria (see 13.36–13.37), imposes a
presumption that the plaintiff’ was contributory negligent if they were
intoxicated at the time of the breach of duty or the accident: Civil Law
(Wrongs) Act 2002 (ACT) s 95; Personal Injuries (Liabilities and Damages)
Act 2003 (NT) s 14; Civil Liability Act 2003 (Qld) s 47; Civil Liability Act
1936 (SA) s 46 (intoxicated at the time of the accident); Civil Liability Act
2002 (Tas) s 5; Civil Liability Act 2002 (WA) s 5L.

13.35 A plaintiff’ may rebut the presumption of contributory negligence

only by proving, on the balance of probabilities, that their intoxication did
not contribute to the breach of duty or that the intoxication was not self-
induced: Civil Law (Wrongs) Act 2002 (ACT) s 95(2); Civil Liability Act 2002
(NSW) s 50(2)–(5); Personal Injuries (Liabilities and Damages) Act 2003
(NT) s 14(2) (intoxication must be voluntary); Civil Liability Act 2003 (Qld) s
47(3); Civil Liability Act 1936 (SA) s 46(2); Civil Liability Act 2002 (Tas) s
5(1), (4); Civil Liability Act 2002 (WA) s 54(2).
In Russell v Edwards (2006) 65 NSWLR 373, it was argued by the plaintiff’
that his intoxication was not self-induced as he was ignorant as to how much
alcohol he could consume before being intoxicated. Ipp JA stated (Beazley JA
and Hunt AJA agreeing) that ‘self-induced’ equated with ‘voluntary’: at [21].
His Honour held that the fact that a person does not know how much they
would be required to drink to be intoxicated does not mean that the
intoxication was not self-induced: at [21].

13.36 In New South Wales, s 50(1) of the Civil Liability Act 2002 (NSW)
applies when it is ‘established that the person whose death, injury or damage
is the subject of proceedings for the recovery of damages was at the time of
the act or omission that caused the death, injury or damage intoxicated to the
extent that the person’s capacity to exercise reasonable care and skill was
impaired’. Section 50(2) provides:
A court is not to award damages in respect of liability to which this Part applies unless satisfied
that the death, injury or damage to property (or some other injury or damage to property) is
likely to have occurred even if the person had not been intoxicated.

[page 339]

Section 50 was considered in Jones v Dapto Leagues Club Ltd [2008]

NSWCA 32, where the plaintiff had placed his fingers in an empty light
socket on the defendant’s premises and suffered an electric shock. The New
South Wales Court of Appeal held that the evidence established that,
although the plaintiff was affected by alcohol, his capacity to exercise
reasonable care and skill was not impaired and, therefore, s 50 of the Civil
Liability Act 2002 (NSW) did not apply. See also Russell v Edwards (2006) 65
NSWLR 373, where the plaintiff, aged 16, consumed alcohol when at a party
held at the defendants’ home. When he was intoxicated, the plaintiff dived
into the shallow end of the swimming pool and was seriously injured. The
trial judge found that the defendants had been negligent by failing to properly
supervise the party. However, s 50 of the Civil Liability Act 2002 (NSW)
applied and, therefore, the defendants were not liable.

13.37 Victoria does not deny an award of damages or mandate a finding of

contributory negligence if the plaintiff was intoxicated. Instead, s 14G of the
Wrongs Act 1958 (Vic) specifies various factors a court is to take into account
to determine if the duty of care has been breached in claims for death or
personal injury. In other circumstances the common law will apply: Wrongs
Act 1958 (Vic) s 14G(1).

13.38 Plaintiff relies upon intoxicated defendant In the Australian

Capital Territory, the Northern Territory, Queensland and South Australia,
there is a presumption of contributory negligence if the plaintiff suffers harm
due to reliance upon an intoxicated defendant: Civil Law (Wrongs) Act 2002
(ACT) s 96; Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 15;
Civil Liability Act 2003 (Qld) ss 48 and 49 (defendant was driving a motor
vehicle); Civil Liability Act 1936 (SA) s 47.
For this presumption to apply, the plaintiff must be at least 16 years old
and must have been aware, or ought reasonably to have been aware, that the
defendant was intoxicated.

13.39 As with an intoxicated plaintiff, the presumption may be rebutted

upon proof that the intoxication of the defendant did not contribute to the
breach of duty or that the plaintiff could not have reasonably avoided relying
on the defendant in the circumstances: Civil Law (Wrongs) Act 2002 (ACT) s
96(2); Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 15(2);
Civil Liability Act 2003 (Qld) s 48(3); Civil Liability Act 1936 (SA) s 47(2).
13.40 Apportionment If a party to the claim was intoxicated, in most
jurisdictions the legislation nominates a 25 per cent minimum reduction of
the plaintiff’s damages: Civil Liability Act 2002 (NSW) s 50(4); Personal
Injuries (Liabilities and Damages) Act 2003 (NT) s 17; Civil Liability Act 2003
(Qld) s 47(4) (intoxicated plaintiff); s 48(4) (intoxicated defendant); Civil
Liability Act 1936 (SA) s 46(3) (intoxicated plaintiff); s 47(3) (intoxicated
defendant); Civil Liability Act 2002 (Tas) s 5(2) (intoxicated plaintiff).

13.41 In the Australian Capital Territory, a reduction that is just and

equitable is required: Civil Law (Wrongs) Act 2002 (ACT) s 95(3)
(intoxicated plaintiff); s 96(3) (intoxicated defendant). In Western Australia,
the Civil Liability Act 2002 is silent as to apportionment; therefore, a just and
equitable reduction in accordance with the degree of negligence attributable
to the plaintiff would be required: Law Reform (Contributory Negligence and
Tortfeasors Contribution) Act 1947 (WA) s 4(1). See 13.22 for a discussion of
‘just and equitable’.

[page 340]

13.42 Motor vehicle accidents Often negligence claims arising from

motor vehicle accidents involve intoxication of either the driver or the
passenger or both. If the plaintiff and defendant driver were intoxicated,
under the common law it was possible that the defendant driver could plead
either contributory negligence or volenti (a complete defence): see 13.48 and
13.63.

13.43 In Joslyn v Berryman (2003) 214 CLR 552; 198 ALR 137 at [27],
McHugh J noted:
Since the introduction of apportionment legislation, contributory negligence has been the
preferred characterisation of the conduct of the plaintiff who accepts a lift from a driver known
to be intoxicated.
 Contributory negligence was determined on the issue of whether a
reasonable person ‘would have foreseen that accepting a lift from the
intoxicated driver was exposing him or her to a risk of injury by reason of the
driver’s intoxication’: Joslyn v Berryman at [38]. This standard applied also if
the plaintiff passenger was intoxicated.

13.44 The civil liability legislation of Queensland and South Australia

imposes a higher reduction of damages if the negligence involves a motor
vehicle: Civil Liability Act 2003 (Qld) s 47(5) (intoxicated plaintiff); s 49
(intoxicated defendant); Civil Liability Act 1936 (SA) s 46(4) (intoxicated
plaintiff); s 47(5) (intoxicated defendant).
The provisions provide for a minimum reduction of 50 per cent of the
damages if the intoxicated plaintiff was a driver of a motor vehicle or the
plaintiff relied upon an intoxicated defendant driver. The greater reduction
will be made if it is established that the blood alcohol concentration of the
driver in either scenario was 0.15 or more or if the driver was incapable of
exercising effective control of the vehicle due to alcohol or drug consumption:
see also Motor Accidents Compensation Act 1999 (NSW) s 138; Transport
Accident Act 1986 (Vic) s 40.

13.45 In Allen v Chadwick (2015) 326 ALR 505, the respondent was
injured when she was a passenger in the appellant’s car. At the time of the
incident the appellant had a blood alcohol level of 0.229 per cent. Prior to the
incident the respondent had been driving and not been drinking. After a
comfort stop she returned to the car to find the appellant in the driver’s seat
and he refused to move. Believing that they were not near their destination,
the respondent got in the back of the car but did not put on her safety belt.
The trial judge in applying the presumption of contributory negligence for a
plaintiff relying upon an intoxicated driver in s 47 of the Civil Liability Act
1936 (SA), found that in the circumstances, taking into account the
respondent’s feelings of helplessness and panic, the respondent could not
have reasonably been expected to avoid the risk of getting in the car with the
appellant driving: s 47(2)(b). The trial judge reduced the respondent’s
damages by 25 per cent for failing to wear a seatbelt (s 49) rather than the
fixed statutory reduction of 50 per cent as prescribed by s 47(5): see Chadwick
v Allen [2012] SADC 105.
On appeal, the Full Court of the Supreme Court of South Australia agreed
that s 47 did not apply and held that in the circumstances, s 49 did not apply
either and therefore the respondent’s damages were not to be reduced: see
Allen v Chadwick (2014) 68 MVR 82 at [156]–[158]. Before the High Court,
the appellant argued that s 47 required the personal characteristics of the
injured person to be ignored when assessing whether ‘the injured

[page 341]

person could not reasonably be expected to have avoided the risk’ in

subsection (2)(b). The High Court agreed, holding (at [50]–[51]):
Section 47(2)(b) is concerned with the reasonable evaluation of the relative risks of riding with
an intoxicated driver or taking an alternative course of action. As Kourakis CJ [dissenting
judgment in the court below] rightly held, it contemplates an objectively reasonable evaluation
of the relative risks. Section 47(2)(b) contemplates the possibility that it may be reasonable for a
plaintiff to decide not to avoid the risk of riding with an intoxicated person because it may
reasonably be assessed as the less risky of two unattractive alternatives. It does not contemplate
that a plaintiff be confronted with “no choice” but to ride with the intoxicated driver; nor does it
contemplate the most reasonable evaluation of which a person whose capacity for reasonable
evaluation is diminished is capable.

The evaluation which s 47(2)(b) contemplates is an evaluation of relative risk in a given

situation by the exercise of reasonable powers of observation and appreciation of one’s
environment, as well as the exercise of a reasonable choice between alternative courses of action.
Inputs into the evaluation contemplated by s 47(2)(b) are those facts, as they may reasonably be
perceived, which bear upon the reasonable assessment of the relative risks of alternative courses
of action. Those facts may include matters of objective fact personal to the plaintiff as well as
aspects of the external environment. But subjective characteristics of the plaintiff which might
diminish his or her capacity to make a reasonable evaluation of relative risk in the light of those
facts are immaterial to the evaluation which s 47(2)(b) contemplates.

The court noted that the respondent was a young woman, pregnant at the
time and therefore more vulnerable to serious consequences if she was
assaulted by a stranger if left alone, and she was on a dark and unfamiliar
road in the early hours of the morning, and was uncertain as to the distance
to the town. The court held that s 47(2)(b) did apply in the circumstances as
(at [61]):
Those facts could reasonably lead to an evaluation of a real risk of harm, either from strangers or
from the difficulties of a walk in unfamiliar territory over an indeterminate distance in the dark.
In addition, the substantial risk of riding with Mr Allen could reasonably be regarded as
lessened to a relatively acceptable level by reason of the absence of other vehicular traffic on the
roads at the time.

Appeals
13.46 An assessment of apportionment, if made by a judge, is not lightly
reviewed and even more so when the apportionment has been made by a jury:
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; 59 ALJR
492; Liftronic Pty Ltd v Unver (2001) 179 ALR 321. However, an appellate
court will overturn a finding as to apportionment of blame if it is found to be
unreasonably disproportionate: Pennington v Norris (1956) 96 CLR 10; Watt
v Bretag (1982) 41 ALR 597; 56 ALJR 760.
In Podrebersek v Australian Iron & Steel Pty Ltd, it was held (at ALR 532;
ALJR 493–4):
A finding on a question 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. It involves an individual choice or discretion, as to which
there may well be differences of opinion by different minds”: British Fame (Owners) v Macgregor
(Owners) [1943] AC 197 at 201. Such a finding, if made by a judge, is not lightly reviewed.

[page 342]

The task of an appellant is even more difficult when the apportionment has been made by a jury
(Zoukra v Lowenstern [1958] VR 594).
13.47 This quote was cited with approval in Joslyn v Berryman (2003) 214
CLR 552; 198 ALR 137 at [157]. In that case, Kirby J referred to the ‘rule of
restraint’ and noted (at [119]) that there were three factors which required
restraint in disturbing decisions about contributory negligence and
apportionment. The three factors were:
1. the issue of contributory negligence is essentially a factual question,
and therefore the primary judge (or jury) will have relevant
advantages over an appellate court that will often be critical for the
determination of the issue;
2. the apportionment legislation conferred upon the decision-maker a
power to reduce the recoverable damages “to such an extent” as the
court determines “having regard to” a consideration expressed in
very general language (“the claimant’s share in the responsibility for
the damage”) that evokes the exercise of a quasi-discretionary
judgment upon which different minds may readily come to
different conclusions; and
3. the broad criteria by which such decisions are made at trial
(including by reference to what “the court thinks just and
equitable” in the case) make it difficult, absent a demonstrated
mistake of law or fact, to establish the kind of error that, alone, will
authorise an appellate court to set aside the decision and any
apportionment of the trial judge and to substitute a different
decision or apportionment on appeal.

3 Volenti Non Fit Injuria (No Injury is

Done to One Who Voluntarily Consents)
13.48 As with other tortious actions, consent by a plaintiff to the
negligence relieves the defendant of liability. Therefore, if a plaintiff, with full
knowledge, voluntarily accepts the risk of injury, the defendant may raise the
defence of volenti non fit injuria. If the defence is proven, it is a complete
defence and the plaintiff will be denied recovery of damages: Rootes v Shelton
(1967) 116 CLR 383; Roggenkamp v Bennett (1950) 80 CLR 292.

13.49 Employers commonly relied on the defence of volenti in the 19th

century in cases brought against them by injured employees. It was reasoned
that if the work involved danger and a risk of injury and the employee carried
out the work, the employee was effectively consenting to the risk; otherwise,
they could leave the employment: Thomas v Quartermaine (1887) 18 QBD
685. This approach favoured employers and was probably regarded as
necessary at the time to assist in the expansion of English industry during the
Industrial Revolution.
The approach was changed by the House of Lords decision of Smith v
Charles Baker & Sons [1891] AC 325 from which evolved the modern
doctrine of volenti non fit injuria. In that case, the plaintiff employee worked
as a driller for his railway contractor employer and was fully cognisant of the
dangers from a crane lifting rocks over his head. The House of Lords held
that the test for volenti was not merely whether the person knew and accepted
exposure to the risk but ‘whether he agreed that, if injury should befall him,
the risk was to be his and not his master’s’: at 355 per Lord Watson.

[page 343]

13.50 To establish the defence of volenti, the defendant must establish that
the plaintiff:
had full knowledge of the risk; and
voluntarily accepted the physical and the legal risk.
See Imbree v McNeilly (2008) 236 CLR 510; 248 ALR 647 at [81]; Carey v
Lake Macquarie City Council (2007) Aust Torts Reports ¶81-874 at [85];
Roggenkamp v Bennett (1950) 80 CLR 292 at 300.

Full Knowledge of Risk

13.51 It must be established that the plaintiff perceived the danger and
understood the risks. A subjective test is applied in establishing whether the
plaintiff was aware of the facts and circumstances that gave rise to the risk.
Obviously, this is a very difficult hurdle for a defendant to get over as mere
knowledge alone of a risk does not imply consent: Smith v Charles Baker &
Sons [1891] AC 325; Canterbury Municipal Council v Taylor [2002] NSWCA
24. It is because of this difficulty that volenti was not often pleaded, and a
defendant would rely upon contributory negligence instead: Imbree v
McNeilly (2008) 236 CLR 510; Schuller v S J Webb Nominees Pty Ltd (2015)
124 SASR 152 at [50].

13.52 There must be full knowledge of the risk and a belief that the risk
may eventuate. In Canterbury Municipal Council v Taylor [2002] NSWCA 24,
the appellant owned and managed a velodrome. A person who had been
playing in a game of touch football in the middle of the velodrome was fatally
injured when he stepped into the path of a group of cyclists training at the
velodrome and was struck by the respondent. The respondent suffered
physical and psychological injuries. The respondent claimed that the
appellant was negligent by failing to take adequate precautions to alleviate the
risk of injury from the dual use of the velodrome by cyclists and footballers.
The appellant claimed the defence of volenti, arguing that the respondent
had voluntarily assumed the risk of injury by participating in the cycling
training. The Court of Appeal held (at [146]–[147]):
It does not follow merely from the fact that the respondent appreciated or should have
appreciated the dangers of simultaneous dual use [of the velodrome] that he believed that the
touch football players would carelessly walk into the cyclists’ path. He may well have believed
that the footballers were quite capable of acting without negligence and would play their game
in safety. These issues were not properly investigated at the trial. What evidence there was on
 this issue tends to support a finding that the respondent did not expect that the risk would
materialise.

A belief that the dangers (of which the respondent had full appreciation) would not materialise,
would negative the proposition that he accepted those dangers.

The Court of Appeal held that in order to establish volenti, the appellant
had to prove that the respondent had knowledge of the risk, had an actual
belief that the risk would eventuate, and had voluntarily accepted that risk. As
the respondent had no belief that such an incident would eventuate, he was
found not to be volens to the risk.

13.53 The civil liability legislation assists in establishing volenti by

providing a presumption that the plaintiff was actually aware of the risk, if the
risk is an obvious one.

[page 344]

Effectively, the onus is placed upon the plaintiff to establish that they were
not aware of the risk.
Section 14 of the Civil Liability Act 2003 (Qld) states:
(1) If, in an action for damages for breach of duty causing harm, a defence of voluntary
assumption of risk is raised by the defendant and the risk is an obvious risk, the plaintiff is
taken to have been aware of the risk unless the plaintiff proves, on the balance of
probabilities, that he or she was not aware of the risk.

An ‘obvious risk’ is a risk that would be obvious to a reasonable person in

the position of the plaintiff: Civil Liability Act 2003 (Qld) s 13. See also Civil
Liability Act 2002 (NSW) ss 5F and 5G; Civil Liability Act 1936 (SA) ss 36
and 37; Civil Liability Act 2002 (Tas) ss 15 and 16; Wrongs Act 1958 (Vic) ss
53 and 54; Civil Liability Act 2002 (WA) ss 5F and 5N. In the Australian
Capital Territory, obvious risks (referred to as ‘inherent risks’) only apply to
equine activities: see Civil Law (Wrongs) Act 2002 (ACT) Sch 3. There are no
equivalent provisions in the Personal Injuries (Liabilities and Damages) Act
2003 (NT).
The civil liability legislation also includes obvious risks arising from
dangerous recreational activities: see 13.67.

13.54 When assessing whether a risk is an obvious risk, reference may be

had to the plaintiff’s knowledge and experience, and to identify the
circumstances and extent to which ‘the aspects of “the position” of the
plaintiff’ are to be ascribed to the reasonable person’: Fallas v Mourlas (2006)
65 NSWLR 418 at [153]. In Doubleday v Kelly [2005] NSWCA 151, the
plaintiff’s age (seven) was relevant when determining whether she was aware
of the risks involved in attempting to roller skate on a trampoline: see 13.11.
See also Queensland v Kelly [2015] 1 Qd R 577, where it was held that the risk
of serious injury from running down a sand dune into a lake was not obvious
to a person in the position of the respondent, a young Irish tourist visiting
Fraser Island, who was unaccustomed to running down sand dunes.

13.55 To have full knowledge of the risk the plaintiff must be aware of the
nature and extent of the risk: Imbree v McNeilly (2008) 236 CLR 510. The civil
liability legislation encompasses this; for example, s 14(2) of the Civil Liability
Act 2003 (Qld) provides:
For this section, a person is aware of a risk if the person is aware of the type or kind of risk, even
if the person is not aware of the precise nature, extent or manner of occurrence of the risk.

13.56 The South Australian legislation also provides that the defence of
volenti cannot be established unless it can be established that a reasonable
person would have taken steps to avoid the risk, which the plaintiff did not
take: Civil Liability Act 1936 (SA) s 37(3). See Schuller v S J Webb Nominees
Pty Ltd (2015) 124 SASR 152.

Voluntary Acceptance of Risk

13.57 The plaintiff must have accepted voluntarily that there was a risk of
injury (physical risk) and a risk that reasonable care would not be taken by
the defendant (legal risk).
In Imperial Chemical Industries Ltd v Shatwell [1965] AC 656, the plaintiff
was employed in one of the defendant’s quarries as an explosives shot firer as
part of normal blasting operations. The employer had issued orders that
testing be done from a shelter. The plaintiff

[page 345]

and the others in his team were aware of those orders and of new statutory
regulations requiring testing from a proper shelter. The plaintiff and his
younger brother sustained personal injuries when a charge exploded
prematurely while testing the electric circuit without using a shelter. The
plaintiff claimed the employers were responsible for his fellow employee’s (his
younger brother’s) negligence because, as his employers, they were
vicariously liable. The House of Lords held that volenti was made out under
general principle founded in common sense and policy. As Lord Reid stated
(at 672–3):
I think that most people would say, without stopping to think of the reason, that there is a world
of difference between two fellow servants collaborating carelessly so that the acts of both
contribute to cause injury to one of them, and two fellow servants combining to disobey an
order deliberately though they know the risk involved. It seems reasonable that the injured man
should recover some compensation in the former case but not in the latter. If the law treats both
as merely cases of negligence it cannot draw a distinction. But in my view the law does and
should draw a distinction. In the first case only the partial defence of contributory negligence is
available. In the second volenti non fit injuria is a complete defence if the employer is not
himself at fault and is only liable vicariously for the acts of the fellow servant. If the plaintiff
invited or freely aided and abetted his fellow servant’s disobedience, then he was volens in the
fullest sense. He cannot complain of the resulting injury either against the fellow servant or
against the master on the ground of his vicarious responsibility for his fellow servant’s conduct.

13.58 The characteristics of the plaintiff will be relevant when determining

whether there was voluntary acceptance of the risk. In Leyden v Caboolture
Shire Council [2007] QCA 134, the plaintiff was 15 years old when injured on
a BMX track in a park operated and controlled by the defendant. The track
was regularly altered by third parties and this was known by the users of the
track, including the plaintiff. A majority of the Queensland Court of Appeal
found that although a duty was owed and had been breached, the defence of
volenti had been established. MacKenzie J stated (at [40]):
… the learned trial judge took into account the [plaintiff’s] age and considerable experience in
riding BMX bikes and formed a judgment that although he was not an adult, he was sufficiently
able to assess the risks for himself.

13.59 Volenti requires proof that the plaintiff accepted the risk that the
defendant may not achieve the standard of care imposed by the law. In Woods
v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 at [125], Kirby J noted
that ‘the appellant must totally accept the consequences of the respondent’s
neglect for his safety’. Similarly, in Imbree v McNeilly (2008) 236 CLR 510;
248 ALR 647 at [81], it was stated ‘the conclusion that a plaintiff voluntarily
assumed the risk in question is readily seen as equivalent to concluding that
the defendant owed that plaintiff no duty of care’.

13.60 Where injury results from a risk other than the one consented to,
the defence will not apply: Kent v Scattini [1961] WAR 74. In Rootes v Shelton
(1967) 116 CLR 383, the plaintiff was injured during a dangerous water skiing
manoeuvre in which the skiers crossed in front of one another. During this
manoeuvre, the plaintiff collided with a boat that was moored in the water.
The plaintiff alleged that the defendant had been negligent by driving too
close to the moored boat and in failing to warn the skiers. The defendant
argued that the plaintiff had voluntarily assumed the risks of water skiing, a
dangerous

[page 346]
sport, and, in particular, the greater risks involved in the dangerous
manoeuvre. Owen J stated (at 395):
To say that the plaintiff voluntarily assumed the risk of colliding with an obstruction in the
water is one thing. To say that the plaintiff voluntarily undertook the risk that the defendant
would carelessly fail to warn him of the presence of such an obstruction or would fail to exercise
due care in steering the launch of which he had control is a very different proposition and one
for which I can find no support in the evidence.

Intoxication
13.61 Intoxication has always added difficulties in the application of
volenti, but it has applied in some cases: Roggenkamp v Bennett (1950) 80
CLR 292; Insurance Commissioner v Joyce (1948) 77 CLR 39.
Proving volenti in such circumstances requires proof that the plaintiff was
aware that the driver was intoxicated to the extent that they would not be
capable of exercising reasonable care in driving and accepted the risks
associated. Mere perception of danger is not enough — the plaintiff must
understand the defendant to be so intoxicated that they (the defendant)
would be unable to exercise reasonable care.
In O’Shea v Permanent Trustee Co of New South Wales Ltd [1971] Qd R 1,
the evidence was that although the plaintiff knew the driver had been
drinking, he had not been with him throughout the evening and, therefore,
was not aware of how much the driver had had to drink. Therefore, although
the plaintiff was contributory negligent, he was not volens. Similarly, in
Suncorp Insurance & Finance v Blakeney (1993) Aust Torts Reports ¶81-253,
the defence of volenti failed because the 16-year-old passenger thought that
the driver ‘seemed alright’.
Legislation exists to prevent the defence of volenti from applying to
plaintiffs who rely upon an intoxicated defendant driver: see Motor Accidents
Compensation Act 1999 (NSW) s 140. The civil liability legislation in some
jurisdictions also prevents the application of volenti where the plaintiff relies
on an intoxicated defendant (not necessarily a driver): Civil Law (Wrongs)
Act (ACT) s 36(5); Civil Liability Act 2003 (Qld) s 48(5); Civil Liability Act
1936 (SA) s 47(6). Instead, a presumption of contributory negligence is
imposed: see 13.44.

13.62 If the plaintiff themselves were intoxicated, a defendant would have

a heavy onus to discharge if alleging the volenti defence. In such
circumstances, the plaintiff could argue that they did not have the capacity to
understand the risks due to the influence of alcohol or drugs and, therefore,
there could not be any voluntary acceptance of any risk. They would still be
presumed to be aware of any obvious risk due to the application of the civil
liability legislation, as a reasonable person is a sober reasonable person: see
13.12 and Joslyn v Berryman (2003) 214 CLR 552; 198 ALR 137.
In Insurance Commissioner v Joyce (1948) 77 CLR 39, the plaintiff was a
passenger in a vehicle which crashed into a gate after colliding with a
stationary truck. The plaintiff was found unconscious in the passenger seat
and the driver was found asleep and quite drunk two hours later under some
lantana bushes nearby.

[page 347]

The High Court held by majority that the plaintiff must fail. On the
question of voluntary assumption of risk, Latham CJ held that the onus was
upon the plaintiff to establish the case. If the plaintiff passenger was sober
enough to understand the danger, he voluntarily encountered an obvious risk:
at 47. Rich J, likewise, drew inferences from the plaintiff’s failure to give
evidence:
And when the greater probability is that both had enough consciousness to be aware of what
they had been doing, although not enough judgment and discretion to drive, why should a judge
hesitate to find accordingly against a plaintiff who gives no evidence: at 49.

Dixon J provided an oft-quoted summary of the position of passengers

voluntarily riding with drunken drivers:
In the case of a driver whose ability to manage and control a car or whose judgment and
 discretion in doing so is impaired by drink, the position of the voluntary passenger has been
variously determined by the application of three different principles. In the first place, he has
been regarded as depending upon a relation which by accepting a place in the conveyance he
sets up between himself and the person responsible for its management. For those who believe
that negligence is not a general tort but depends on a duty arising from relations, juxtapositions,
situations or conduct or activities, the duty of care thus arises. For those who take the contrary
view, the standard of care is thus determined. But whatever be the theory, the principle applied
to the case of the drunken driver’s passenger is that the care he may expect corresponds with the
relation he establishes. If he knowingly accepts the voluntary services of a driver affected by
drink, he cannot complain of improper driving caused by his condition, because it involves no
breach of duty: at 56–7.

Dixon J preferred to deal with the matter as one of duty rather than
exculpatory considerations and, in dissent, held that there was not sufficient
evidence to show that the plaintiff had knowledge or appreciation sufficient
to negate a duty. In his words, it was ‘all speculation or guesswork’: at 60.

13.63 Therefore, if a passenger is so intoxicated as to be unable to

appreciate the intoxicated state of the driver, the defence may not apply:
O’Shea v Permanent Trustee Co of New South Wales Ltd [1971] Qd R 1;
Duncan v Bell [1967] Qd R 425; Cvetkovic v Princes Holdings (t/a Tilt
Amusement Centre) (1989) 51 SASR 365.

Implied acceptance of risk

13.64 Since the test is said to be subjective, there should therefore be no
room for the doctrine of constructive knowledge. However, in a number of
situations, consent by the plaintiff to exempt the defendant from liability is
implied. In Roggenkamp v Bennett (1950) 80 CLR 292 at 300, it was stated:
The question whether the plaintiff’s acceptance of the risk was voluntary is generally a question
of fact, and the answer to it may be inferred from his conduct in the circumstances. The
inference may more readily be drawn in cases where it is proved that the plaintiff knew of the
danger and comprehended it, as, for example, where the danger was apparent, or proper
warning was given of it, and there was nothing to show that he was obliged to incur it, than in
cases where he had knowledge that there was danger but not full comprehension of its extent, or
where, while taking an ordinary and reasonable course, he had not an adequate opportunity of
electing whether he would accept the risk or not.
 [page 348]

See also Schuller v S J Webb Nominees Pty Ltd (2015) 124 SASR 152, where
it was held that it could be inferred from the facts that the appellant
voluntarily accepted the risks when she chose to dance on a chair on the
respondent’s premises when affected by alcohol.
Some common examples where it may be inferred that a plaintiff
consented to the risk are motor vehicle accidents and sporting activities.

13.65 Motor vehicle accidents Every user of the highway is deemed at

common law to consent to run the risk of damage from dangers which cannot
be avoided by the use of reasonable care and skill: Holmes v Mather (1875) LR
10 Ex 261.
If a person accepts a lift with a driver they know to be inexperienced, it may
be argued that they consented to the risks associated with that inexperience.
In Walker v Turton-Sainsbury [1952] SASR 159, the defence was successful
when a passenger permitted an inexperienced driver to drive a racing car and
was found to have voluntarily accepted the risk of the novice being unable to
control the car. However, in Ranieri v Ranieri [1973] 7 SASR 418, a father
travelling in a vehicle driven by his inexperienced son was found to have
voluntarily accepted the risk of his son’s inexperience as a driver, but not to
have accepted the risk of his son’s carelessness in taking his eyes off the road.
See Imbree v McNeilly (2008) 236 CLR 510; 248 ALR 647 for a discussion of
volenti and passengers of inexperienced drivers.
A passenger who voluntarily rides in a vehicle, knowing it to be defective, is
volens to risks arising from the defective state of the vehicle but not to
negligent driving: Gent-Diver v Neville [1953] St R Qd 1 (volenti was not
established because, although there was an acceptance of risk by a pillion
passenger to dangers arising from the absence of a light, injury was caused by
failure of the driver to keep a proper look-out).
13.66 Sport and recreational activities The voluntary participation in a
sport does not imply acceptance of any risk that may be associated with the
game: Agar v Hyde (2000) 201 CLR 552; 173 ALR 665 at [14]; Rootes v Shelton
(1967) 116 CLR 383. However, both participants and spectators are volens to
the risks of injury inherent in a lawful sport: Hall v Brooklands Auto Racing
Club [1933] 1 KB 205; Moloughney v Wellington Racing Club [1935] NZLR
800; Murray v Harringay Arena Ltd [1951] 2 KB 529; Woodridge v Sumner
[1963] 2 QB 43; Simms v Leighy Rugby Football Club [1969] 2 All ER 923.
Inherent risks are those which are naturally incidental to the game being
played and any extraordinary, although foreseeable, risks incidental to that
sport.

13.67 The civil liability legislation specifically provides for plaintiffs

engaging in dangerous recreational activities. Section 19 of the Civil Liability
Act 2003 (Qld) states that a person is not liable in negligence for harm
suffered by a plaintiff that is the result of the materialisation of an obvious
risk of a dangerous recreational activity: see also Civil Liability Act 2002
(NSW) s 5L; Recreational Services (Limitation of Liability) Act 2002 (SA) s 5;
Civil Liability Act 2002 (Tas) s 20; Civil Liability Act 2002 (WA) s 5H.
Section 18 of the Civil Liability Act 2003 (Qld) defines ‘dangerous
recreational activity’ as ‘an activity engaged in for enjoyment, relaxation or
leisure that involves a significant degree of risk of physical harm to a person’.
See also Civil Liability Act 2002 (NSW) s 5K; Civil Liability Act 2002 (Tas) s
19; Civil Liability Act 2002 (WA) s 5E.

[page 349]

13.68 In determining whether an activity falls within this definition,

regard may be had to the probability of harm, the gravity of the injury and
characteristics of the plaintiff. Risks that would be obvious in a dangerous
recreational activity would be those that are obvious to a reasonable person;
therefore, an objective test: see Fallas v Mourlas (2006) 65 NSWLR 418
(kangaroo shooting); Lormine Pty Ltd v Xuereb [2006] NSWCA 200 (dolphin
watching). It may be necessary to take into account the characteristics of the
plaintiff to determine whether the risk is an obvious one. For example, to a
young child engaged in a dangerous recreational activity, certain risks may
not be as obvious as they would be to an older participant: Doubleday v Kelly
[2005] NSWCA 151.

13.69 In Fallas v Mourlas (2006) 65 NSWLR 418, the New South Wales
Court of Appeal considered the obvious risks of dangerous recreational
activities under the Civil Liability Act 2002 (NSW). The plaintiff was shot in
the leg by the defendant as he sat in a car holding a spotlight for his
companions while shooting kangaroos.
Ipp JA referred to the following principles as relevant in determining
whether a recreational activity was dangerous:
it is an objective test (at [13]);
‘significant risk of physical harm’ refers to ‘a standard lying somewhere
between a trivial risk and a risk likely to materialise’ (at [18]);
the significant risk which converts a recreational activity into a
dangerous one may be different to the obvious risks associated with the
activity (at [28]); and
reference must be made to the particular activity the plaintiff was
engaged in at the time, which may involve segmenting ‘the particular
activities actually engaged in from the broader (and more general)
activity of which it forms part’: at [46].
Ipp JA and Basten J held that kangaroo shooting was a dangerous
recreational activity as it involved ‘a significant degree of risk of physical
harm to a person’. For the defendant to avoid liability under the section, the
harm suffered by the plaintiff had to be the materialisation of the obvious risk
of the dangerous recreational activity. Ipp JA held that the harm did not
materialise from the obvious risk of kangaroo shooting as the defendant’s
conduct was grossly negligent: at [54]. Tobias J held that the injury did arise
from the obvious risk because a reasonable person would have been aware
that any reassurance by the defendant, as he fiddled with the gun, that it was
not loaded was unreliable: at [107].
Basten J, in dissent, held that the activity engaged in at the time of the
incident was not a dangerous recreational activity as there was no significant
risk of an accidental discharge of a gun: at [149]. However, his Honour
thought that the discharge of the gun was an obvious risk, stating (at [157]):
… there was, prior to the discharge of the gun, a risk that the defendant would point it at the
plaintiff, even though that would be a careless act, done in contravention of standard rules for
the handling of firearms. Although there was no evidence of it, the plaintiff might have believed
that the defendant was experienced, careful and responsible in his handling of firearms. But
even if he had, that would merely mean that the risk of an accidental pointing of the gun was
probably low. It would remain an obvious risk.

[page 350]

13.70 Since the decision of Fallas v Mourlas (2006) 65 NSWLR 418, there
have been many cases that raise the issue of obvious risk of a dangerous
recreational activity, but as yet no decision of the High Court. An analysis of
the cases indicates that it is not always certain when a court will classify an
activity as a dangerous recreational activity. In Stewart v Ackland (2015) 10
ACTLR 207; 293 FLR 341, it was held that performing backflips on a jumping
pillow was not a dangerous recreational activity as the risk of serious injury
was too slight. Special leave was granted by the High Court; however, the
parties settled the claim. In Alameddine v Glenworth Valley Horse Riding
(2015) 324 ALR 355, it was held that in light of the way in which the
respondent’s website described quad bike riding, it was not a dangerous
recreational activity, despite the activity being described so in the application
form signed by the participants and on a sign in the waiting area.
See also Sharp v Parramatta City Council (2015) 209 LGERA 220; [2015]
NSWCA 260 (jumping off a 10-metre diving platform into a pool was a
dangerous recreational activity); Falvo v Australian Oztag Sports Association
(2006) Aust Torts Reports ¶81-831 (Oztag held not to be a dangerous
recreational activity); Lormine Pty Ltd v Xuereb [2006] NSWCA 200 (dolphin
watching on a 10-metre catamaran held not to be a dangerous recreational
activity); Vreman v Albury City Council [2011] NSWSC 39 (riding of BMX
bikes at a skate park held to be a dangerous recreational activity); Jaber v
Rockdale City Council (2008) Aust Torts Reports ¶81-952 (diving off a wharf
held to be a dangerous recreational activity); Laoulach v Ibrahim [2011]
NSWCA 402 (diving from a sports cruiser when moored was considered not
to be a dangerous recreational activity).

4 Illegality
13.71 If the negligence involves illegal conduct of either the plaintiff, or
the plaintiff and the defendant together, a defendant may be absolved of
liability.

Joint Illegal Enterprise

13.72 If the plaintiff suffers damage as the result of the defendant’s act, or
omission in the course of an illegal activity engaged in by the plaintiff jointly
with the defendant, the plaintiff may be precluded from recovering damages.
This preclusion may be based on either the argument that no duty of care was
owed or the application of the defence of joint illegal enterprise: Smith v
Jenkins (1970) 119 CLR 397.
To establish joint illegal enterprise, the defendant must prove that:
they and the plaintiff were jointly engaged in an illegal activity; and
there was a connection between the illegal activity and the negligent
conduct.
13.73 Under the original formulation of the defence, the illegality had to
be sufficiently serious and inseverable from the activity giving rise to the
damage, for example when both plaintiff and defendant unlawfully used a
motor vehicle in the course of a serious crime.
The principles were refined in Jackson v Harrison (1978) 138 CLR 438; 19
ALR 129, where the joint illegal enterprise involved a minor infringement of
statutory traffic provisions.

[page 351]

In that case, the High Court indicated that the defence would apply only
where it was necessary to consider the illegality in determining the standard
of care reasonably to be expected.
Jacobs J detailed the defence as follows (at CLR 457–8; ALR 144):
I think that it is correct to base the defence upon a denial of a duty of care in the particular
circumstances rather than upon a denial of remedy for a breach of the duty of care. A legal duty
of care presupposes that a tribunal of fact can properly establish a standard of care in order to
determine whether there has been a breach of the duty of care. If the courts decline to permit the
establishment of an appropriate standard of care then it cannot be said that there is a duty of
care.

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 owed in the particular circumstances could only be determined
by bringing into consideration the nature of the activity in which the parties were engaged. The
two safe blowers provide the simplest illustration. What exigencies of the occasion would the
tribunal take into account in determining the standard of care owed? That the burglar alarm had
already sounded? That the police were known to be on their way? That by reason of the furtive
occasion itself a speed of action was required which made it inappropriate to apply to the
defendant a standard of care which in lawful circumstances would be appropriate? The courts
will not engage in this invidious inquiry. The reason is no doubt based on public policy. If then,
no standard of care can legally be determined, it cannot be said that there is any duty of care.

13.74 Therefore, the fact that the parties were engaged in an illegal
enterprise at the time of the negligence does not necessarily deny the plaintiff
a remedy: Gala v Preston (1991) 172 CLR 243; 100 ALR 29. The conduct
within the illegal enterprise must be connected to the alleged negligence: Gala
v Preston. For example, to accept a lift with a driver knowing that they are on
the way to deliver drugs would not necessarily give rise to the defence.
However, if, during that lift, the driver was chased by the police and that led
to negligent driving, the defence may be established.
In Gala v Preston (1991) 172 CLR 243; 100 ALR 29, a plaintiff stole a car
with others after an afternoon of heavy drinking, but handed over the driving
to another. Some hours later, after having travelled hundreds of kilometres,
the plaintiff was injured when the car was driven off the road into a tree at
high speed. The plaintiff was asleep without his seatbelt on. Three of the
members of the High Court excluded a duty because of the joint criminal
activity. However, a majority, purporting to use an extended version of
‘proximity’, held that a duty of care should not be negated in the
circumstances but that there was no proximate relationship attracting the
normal duty of care in this case.
Mason CJ, Deane, Gaudron and McHugh JJ stated (at CLR 250–2; ALR 34–
5):
There is no a priori reason why the illegality of a particular enterprise or activity should
automatically negate the existence of a duty of care which might otherwise arise from the
relationship which subsists between the parties … [I]n cases involving a joint illegal enterprise,
it is necessary to examine the relation of the illegality to the negligence complained of with a
view to ascertaining whether it is possible or feasible for the court to determine an appropriate
standard of care. If it is impossible or not feasible to do so, no duty of care arises … [I]n cases of
illegality arising from infringement of statutory provisions which are designed to promote
safety,

[page 352]

for example, traffic laws and industrial safety regulations, there is no reason why illegality of that
kind should negate the existence of a duty of care.

Gala v Preston was applied in Fabre v Arenales (1992) 27 NSWLR 437,

where the New South Wales Court of Appeal held that where a driver of a
motor vehicle and its passenger were both attempting to escape from the
police after both were involved in a criminal offence, the ordinary
relationship of proximity between a driver and a passenger was transformed
into one which lacked the relevant duty to take ordinary care in driving.
Mahoney JA, giving judgment for the court, stated (at 453):
In my opinion Mr Arenales was driving the car as he did in order to escape from the police. To
do this, he was driving fast and he drove in a manner which, he hoped, would enable him to
escape from them, for example, by taking turns or corners which they could not take. I infer that
the plaintiff was a party to what he was doing. Accepting Mr Stephens’ evidence, she had been
involved in a criminal offence on the premises in George Street and invited Mr Arenales’
assistance to escape from Mr Stephens. She was also a party to the attempt to escape from the
police. When she entered the car she referred to the police. It is not necessary to seek to
determine whether she consented in terms to the precise manoeuvres undertaken by Mr
Arenales. It is, in my opinion, sufficient that she was a party to the attempt to escape from the
police as he did.

In those circumstances, she could not expect from him any more care than in fact he took. The
ordinary relationship of a driver towards a passenger … was transformed into one which lacked
the relevant duty to take ordinary care in driving. What happened, namely, the car striking the
pillar box and the wall, was the kind of thing apt to happen in such a venture. In my opinion,
therefore, the judge’s judgment for the defendants was correct.

13.75 The High Court considered the defence in Miller v Miller (2011) 242
CLR 446; 275 ALR 611. The appellant was injured when she was a passenger
in a stolen motor vehicle. On the day of the accident the appellant had been
drinking and was trying to get home, so she stole a car and asked her older
sister, who she knew was unlicensed and had also been drinking, to drive
herself and their younger cousin home. As they left the car park in the stolen
car, the respondent, who was their uncle, stopped them and told them he
would drive.
The respondent drove reasonably at the start of the journey but then
started to speed and was failing to stop at red lights. The appellant asked him
to slow down and to stop to let her and her sister out but the respondent
refused. The respondent lost control of the car, striking a pole causing serious
injury to the appellant.
At first instance, it was held that the respondent owed the appellant a duty
of care and the appellant was guilty of contributory negligence assessed at 50
per cent. The appeal court held that the respondent did not owe a duty of care
based upon the finding that the parties were engaged in a joint illegal activity
and the appellant’s action failed.
A majority High Court held that if the illegal taking of the vehicle, an illegal
act under s 371A of the Criminal Code (WA), did result in dangerous driving,
any passenger complicit in that illegal use would also be complicit in the
dangerous driving and if injured, ‘it would evidently be incongruous to decide
that the offender who drove the vehicle owed that passenger a duty to drive
with reasonable care’: at [93].

[page 353]

The High Court rejected the notion that courts cannot regulate the conduct
of wrongdoers, but it would be incongruous ‘for the law to provide that the
driver should not be using the vehicle at all and yet say that, if the driver and
another jointly undertake the crime of using a vehicle illegally, the driver
owes the confederate a duty to use it carefully when neither should be using it
at all’: at [73]. To avoid any incongruity, the illegality of the case must be
analysed ‘by reference to the relevant statute, and identification of its
purposes … [so that] any contrariety or lack of coherence denying the
existence of a duty of care will be found’: at [74].
A majority of the court (6:1) allowed the appellant’s appeal, setting aside
the decision of the Court of Appeal of the Supreme Court of Western
Australia. This was based upon s 8(2) of the Criminal Code (WA) which
provides that a person is not deemed to have prosecuted an unlawful purpose
with another if they withdrew from the prosecution of the unlawful purpose,
communicated this to the other persons involved and took all reasonable
steps to prevent the commission of the offence. The majority (Heydon J in
dissent) held the appellant had communicated her withdrawal from the
unlawful use of the vehicle by asking to be let out, and in the circumstances
there were no reasonable steps she could have taken to prevent the illegal act.
Therefore, at the time of the incident, the appellant was no longer engaged in
the illegal activity with the respondent.

Plaintiff’s Illegal Activity

13.76 Under the common law, the fact that a plaintiff was engaged in
criminal conduct at the time they were injured does not necessarily prevent a
duty from being owed: Henwood v Municipal Tramways Trust (SA) (1938) 60
CLR 438; Hackshaw v Shaw (1984) 144 CLR 614; 56 ALR 417.

13.77 In response to concerns of society, the civil liability legislation in

many jurisdictions addresses this issue by denying recovery of damages for
personal injury if at the time the plaintiff was engaged in criminal conduct
and that conduct contributed materially to the risk of harm. See Civil Law
(Wrongs) Act 2002 (ACT) s 94; Civil Liability Act 2002 (NSW) s 54 (serious
offence punishable by six months or more imprisonment); Personal Injuries
(Liabilities and Damages) Act 2003 (NT) s 10 (an offence punishable by
imprisonment); Civil Liability Act 2003 (Qld) s 45 (an indictable offence);
Civil Liability Act 1936 (SA) s 43 (an indictable offence); Civil Liability Act
2002 (Tas) s 6 (serious offence punishable by six months or more
imprisonment). In Victoria, there is no denial of civil liability but the illegality
of the plaintiff’s conduct is relevant in assessing breach of duty: Wrongs Act
1958 (Vic) s 14G(2)(b). There is no equivalent in the Western Australian
legislation.

13.78 In Queensland and South Australia, the plaintiff’s conduct must be

an indictable offence. An ‘indictable offence’ is a more serious criminal
charge that may be prosecuted before a court. In New South Wales,
Queensland and Tasmania, it is not necessary that the plaintiff be convicted
of the offence for the section to operate: Civil Liability Act 2002 (NSW) s
54(5); Civil Liability Act 2003 (Qld) s 45(4); Civil Liability Act 2002 (Tas) s
6(2). However, the plaintiff’s conduct must have constituted an indictable
offence and contributed materially to the risk of harm. In New South Wales
and Queensland, this is on the balance

[page 354]

of probabilities. In South Australia, the court must be satisfied beyond

reasonable doubt that the conduct was such an offence and on the balance of
probabilities it contributed to the harm: Civil Liability Act 1936 (SA) s 43(1).
However, a conviction or acquittal must be accepted as conclusive evidence of
guilt or innocence: Civil Liability Act 1936 (SA) s 43(3).
If the denial of civil liability would be harsh and unjust in the
circumstances, the legislation in some jurisdictions does allow the court to
award damages. In Queensland, s 45(3) of the Civil Liability Act 2003 (Qld)
provides:
If the court decides to award damages under subsection (2), the court must assess damages on
the basis that the damages to which the injured person would be entitled, apart from this
section, are to be reduced, on account of the injured person’s conduct, by 25% or a greater
percentage decided by the court to be appropriate in the circumstances of the case.

See also Civil Law (Wrongs) Act 2002 (ACT) s 94(2); Personal Injuries
(Liabilities and Damages) Act 2003 (NT) s 10(2); Civil Liability Act 2003
(Qld) s 45(2); Civil Liability Act 1936 (SA) s 43(2). There is no equivalent in
New South Wales and Tasmania.

13.79 The civil liability provisions preventing criminals being awarded

damages for personal injury do not affect the common law defence of joint
illegal activity. The provisions refer to situations where ‘the breach of duty
from which civil liability would arise’, not a situation of no duty being owed.
In Queensland, although there was no in-depth discussion of s 45 of the Civil
Liability Act 2002 when the bill was introduced, any reference to the
provision refers to the scenario of the defendant being an innocent party.2

5 Immunity from Civil Liability

13.80 The civil liability statutes in Australia provide immunity from civil
liability for a variety of circumstances. For example, the civil liability
legislation changed the way in which evidence of meeting professional
standards is considered in the negligence action, providing a defence in some
jurisdictions. Protection from civil liability may also be provided for failing to
warn of obvious risks and inherent risks. Further, protection is provided to
persons assisting in an emergency and volunteering within the community
and to those donating food for charitable or benevolent purposes.

Provision of a Professional Service

13.81 Evidence of standards within a particular profession is relevant
when considering breach of the duty of care, but the fact that the defendant
conformed to usual professional conduct does not necessarily mean they had
not been negligent: Rogers v Whitaker (1992) 175 CLR 479; 109 ALR 625;
Florida Hotels Pty Ltd v Mayo (1965) 113 CLR 588 at 593, 601; see 11.71.

13.82 In New South Wales, Queensland, South Australia, Tasmania and

Victoria, the civil liability legislation allows evidence of accepted practice to
prove that the standard of

[page 355]
care owed by the professional has not been breached. For example, s 22(1) of
the Civil Liability Act 2003 (Qld) states:
A professional 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.

See also Civil Liability Act 2002 (NSW) s 5O (‘does not incur liability in
negligence’); Civil Liability Act 1936 (SA) s 42 (‘incurs no liability in
negligence’); Civil Liability Act 2002 (Tas) s 22 (‘does not breach a duty’);
Wrongs Act 1958 (Vic) s 59 (‘is not negligent’). There is no equivalent in the
legislation of the Australian Capital Territory and the Northern Territory.
In Western Australia there is no generic professional provision, only a
similar provision that applies to health professionals, see 13.89.

13.83 As the provisions provide that a ‘professional does not breach a

duty’ or similar terms, it may be raised by a defendant as a defence. In New
South Wales, it has been held that s 5O of the Civil Liability Act 2002 that
provides that a professional exercising competent professional practice as
evidenced by peers ‘does not incur liability in negligence’, operates as a
defence: Dobler v Halverson (2007) 70 NSWLR 151; Sydney South West Area
Health Services v MD (2009) 260 ALR 702. See also Mules v Ferguson [2015]
QCA 5, where it was accepted that s 22 of the Civil Liability Act 2003 (Qld)
provided a defence.

13.84 ‘Professional’ is defined in the Queensland and Victorian civil

liability legislation as a person practising a profession: Civil Liability Act 2003
(Qld) s 20; Wrongs Act 1958 (Vic) s 57. ‘Professional’ would no doubt be
given a very wide interpretation in comparison to the traditional
understanding of the term such as solicitors and medical practitioners. In
Prestia v Aknar (1996) 40 NSWLR 165 at 186, Santow J discussed the
meaning of ‘professional activity’ as:
… intellectual activity, or manual activity controlled by the intellectual skill of the operator,
 whereby services are offered to the public, usually though not inevitably for reward and
requiring professional standards of competence, training and ethics, typically reinforced by
some form of official accreditation accompanied by evidence of qualification.

13.85 A proviso is included that peer professional opinion cannot be relied

upon if the court considers the opinion to be irrational or contrary to the
written law: Civil Liability Act 2002 (NSW) s 50(2); Civil Liability Act 2003
(Qld) s 22(2); Civil Liability Act 1936 (SA) s 41(2); Civil Liability Act 2002
(Tas) s 22(2); Wrongs Act 1958 (Vic) s 59(2) (court considers opinion to be
unreasonable).

Advice and warnings

13.86 The standard of care for professionals provisions do not apply if the
liability is based upon the giving of, or a failure to give, a warning, advice or
information associated with the provision of the professional service.
However, there are some slight differences in the wording. Section 22(5) of
the Civil Liability Act 2003 (Qld) states:
This section does not apply to liability arising in connection with the giving of (or the failure to
give) a warning, advice or other information, in relation to the risk of harm to a person, that is
associated with the provision by a professional of a professional service.

[page 356]

‘Harm’ is defined in the Queensland legislation as harm of any kind,

including personal injury, property damage and economic loss (Civil Liability
Act 2003 (Qld) Dictionary) and therefore the exception has wide application.
The Tasmanian provision is in similar terms: Civil Liability Act 2002 (Tas) s
22(5). The Victorian exception is also similar in its application, referring to ‘a
risk or other matter to a person’ as being the subject of the warning or
information: Wrongs Act 1958 (Vic) s 60.
The exception is more restricted in New South Wales and South Australia,
applying to warnings, advice and information in relation to death or injury
and is therefore more relevant to the medical profession.

13.87 The civil liability legislation provisions as to obvious risks may also
be relevant to a professional. In some jurisdictions, the civil liability
legislation provides that there is no duty to warn of obvious risks (see 13.97).
However, the provisions do not apply if the defendant is a professional and
the risk is a risk of death or personal injury, or the patient has requested the
information or advice, or the written law requires the warning be given: see
Civil Liability Act 2002 (NSW) s 5H(2); Civil Liability Act 2003 (Qld) s 15(2)
(a professional other than a doctor, due to the application of s 21); Civil
Liability Act 1936 (SA) s 38(2) (provision of a health care service); Civil
Liability Act 2003 (Tas) s 17(2) (a professional other than a medical
practitioner due to s 21); Civil Liability Act 2002 (WA) s 5O(2). There is no
equivalent provision in the Australian Capital Territory, the Northern
Territory or Victoria.

Medical professionals
13.88 Under the civil liability legislation, except in the Australian Capital
Territory and the Northern Territory, medical and health professionals may
avoid liability in negligence if the evidence is that they acted in accordance
with accepted peer professional practice in respect of diagnosis and
treatment: see 13.82. The proviso that peer professional opinion cannot be
relied upon if considered by the court to be irrational or contrary to written
law (see 13.85) protects a practitioner whose treatment is supported by
opinion and also the practitioner who is on the cutting edge of medical
practice, but allows the community, through the court, to exercise control
over exceptional cases.

13.89 The Western Australian civil liability legislation differs in that it

does not have the generic professional provision, but it does have a provision
in similar terms that only applies to health professionals. Section 5PB of the
Civil Liability Act 2002 (WA) states:
(1) An act or omission of a health professional is not a negligent act or omission if it is in
accordance with a practice that, at the time of the act or omission, is widely accepted by the
health professional’s peers as competent professional practice.
…
(3) Subsection (1) applies even if another practice that is widely accepted by the health
professional’s peers as competent professional practice differs from or conflicts with the
practice in accordance with which the health professional acted or omitted to do
something.
(4) Nothing in subsection (1) prevents a health professional from being liable for negligence if
the practice in accordance with which the health professional acted or omitted to do
something is, in the circumstances of the particular case, so unreasonable

[page 357]

that no reasonable health professional in the health professionals position could have acted
or omitted to do something in accordance with that practice.
(5) A practice does not have to be universally accepted as competent professional practice to be
considered widely accepted as competent professional practice.
(6) In determining liability for damages for harm caused by the fault of a health professional,
the plaintiff always bears the onus of proving, on the balance of probabilities, that the
applicable standard of care (whether under this section or any other law) was breached by
the defendant.

‘Health professional’ is defined in the Civil Liability Act 2002 (WA) s 5PA.

13.90 Advice and warnings One aspect of a doctor’s scope of duty of care
in negligence is to provide advice and information. The duty to inform is a
duty to take reasonable care to inform. When the High Court rejected the
Bolam principle, it rejected its application to advice situations as well: Rogers
v Whitaker (1992) 175 CLR 479; 109 ALR 625; Naxakis v Western General
Hospital (1999) 197 CLR 269; 162 ALR 540.

13.91 As noted at 13.86, the professional standards provisions do not

apply to liability arising in connection with the giving, or failing to give, a
warning, advice or information. The exceptions contained in the New South
Wales and South Australian legislation are particularly directed at warning,
advice and information in respect of personal injury or death by a
professional, which would usually be a medical or health professional. See
Civil Liability Act 2002 (NSW) s 5P (‘in respect of the risk of death of or
injury to a person’); Civil Liability Act 1936 (SA) s 41(5) (‘in respect of a risk
of death of or injury associated with the provision of a health care service’).
Therefore, evidence of complying with accepted medical practice for this
particular aspect of the duty of care does not avoid liability in Australia.

13.92 In Queensland and Tasmania, the civil liability legislation provides

that a doctor does not breach the duty owed to a patient to inform of risks of
medical treatment unless they fail to inform the patient of a material risk.
Although the provision is phrased as ‘no breach’, it is merely a confirmation
of the scope of a doctor’s duty as established in Rogers v Whitaker (1992) 175
CLR 479; 109 ALR 625. See 11.75ff.

Obvious Risks
13.93 If the plaintiff alleges that the defendant breached the duty of care by
failing to warn them of a risk, the defendant may establish that there was no
breach as the risk was an obvious risk: Angel v Hawkesbury City Council
(2008) Aust Torts Reports ¶81–955 at [83].
Section 15 of the Civil Liability Act 2003 (Qld) provides that there is no
proactive duty to warn of an obvious risk:
(1) A person (defendant) does not owe a duty to another person (plaintiff) to warn of an
obvious risk to the plaintiff.
(2) Subsection (1) does not apply if—
(a) the plaintiff has requested advice or information about the risk from the defendant; or
(b) the defendant is required by a written law to warn the plaintiff of the risk; or
 [page 358]

(c) the defendant is a professional, other than a doctor, and the risk is a risk of the death
of or personal injury to the plaintiff from the provision of a professional service by the
defendant.
(3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the
circumstances referred to in that subsection.

See Civil Liability Act 2002 (NSW) s 5H; Civil Liability Act 1936 (SA) s 38;
Civil Liability Act 2003 (Tas) s 17; Civil Liability Act 2002 (WA) s 5O. There
is no equivalent provision in the Australian Capital Territory, the Northern
Territory or Victoria.

13.94 The test to determine whether a risk is an obvious risk is an

objective one: Glad Retail Cleaning Pty Ltd v Alvarenga (2013) 86 NSWLR
191 at [61]; Collins v Clarence Valley Council [2015] NSWCA 263: see 13.53
for discussion of meaning of ‘obvious risk’; Queensland v Kelly [2015] 1 Qd R
577.
In Schultz v McCormack [2015] NSWCA 330 at [85], it was suggested that
as the provision ‘cuts across of the scope of the duty of care’, it is appropriate
to consider after concluding there is a duty of care and that the scope of that
duty includes the relevant risk of harm. See also Collins v Clarence Valley
Council [2015] NSWCA 263 at [120]–[122].

Inherent Risks
13.95 An inherent risk is one that cannot be avoided by the exercise of
reasonable care: Rootes v Shelton (1967) 116 CLR 383 at 386; Woods v Multi-
Sport Holdings Pty Ltd (2002) 208 CLR 460; 186 ALR 145 at [111]; Vairy v
Wyong Shire Council (2005) 221 ALR 711 at [50]; Perisher Blue Pty Ltd v
Nair-Smith (2015) 295 FLR 153; 320 ALR 235 at [167] (risk of respondent
being injured by the ski lift could have been avoided with reasonable care and
therefore was not an inherent risk).
13.96 Under the common law, a defendant is not liable for damage arising
from an inherent risk. The civil liability legislation in most jurisdictions
restates this law. For example, s 5I of the Civil Liability Act 2002 (NSW)
provides:
(1) A person is not liable in negligence for harm suffered by another person as a result of the
materialisation of an inherent risk.
(2) An inherent risk is a risk of something occurring that cannot be avoided by the exercise of
reasonable care and skill.
(3) This section does not operate to exclude liability in connection with a duty to warn of a
risk.

See also Civil Liability Act 2003 (Qld) s 16; Civil Liability Act 1936 (SA) s
39; Wrongs Act 1958 (Vic) s 55; Civil Liability Act 2002 (WA) s 5P. There is
no equivalent in the Australian Capital Territory, Tasmanian or Northern
Territory legislation.
In Paul v Cooke (2013) 85 NSWLR 167, it was held that if the defendant
denied liability in negligence because the harm suffered by the plaintiff was
the result of the materialisation of an inherent risk, that was the starting point
for consideration, not whether the defendant was negligent. Leeming JA held
(at [51]):
If a case can conveniently be decided under s 5I [Civil Liability Act 2002 (NSW)], it should be.
The language of s 5I reflects the elements of liability which the plaintiff needs to establish. That
is

[page 359]

why it is framed in terms of the broader causal language of “as a result of … and why its opening
words are “[a] person is not liable in negligence”. That is reinforced by s 5I(3), which carves out
from the operation of the section “to exclude liability” a class of liability connected with a duty
to warn. Section 5I does not deny s 5D causation; rather it answers the implicit question posed
by the “claim” contemplated by s 5A(1) [application of Pt 1A of the Civil Liability Act 2002
(NSW) to claims of negligence] negatively: the defendant is not liable for that claim for damages
for harm resulting from negligence.

The Court of Appeal also held that the application of the section was not
limited to the materialisation of inherent risks created by the defendant’s
negligence. Leeming JA pointed out that where the legislation intended a
provision to apply to a particular party, that party was identified:
… other sections appear to be drafted on the basis that where their operation is confined to
conduct of a particular person, the section says so. Section 5I is not one of those sections: at [72].

Rescue Cases
13.97 Policy plays a significant role in negligence claims in rescue
situations.
If the defendant has placed a person or property in danger, an injured
rescuer may sue in negligence.
In Videan v British Transport Commission [1963] 2 All ER 860 at 867–8,
Lord Denning stated:
The right of the rescuer is an independent right, and is not derived from that of the victim. The
victim may have been guilty of contributory negligence — or his right may be excluded by
contractual stipulation — but still the rescuer can sue.

13.98 The common law defence of volenti will not normally succeed
against the injured rescuer even where such rescuer is aware of the risk and
the extent of the danger: Haynes v Harwood [1935] 1 KB 146. However, where
the rescuer intervenes unreasonably and unnecessarily with full appreciation
of the risks, the position will be different: Cutler v United Dairies [1933] 2 KB
297 (plaintiff helped defendant with horse that had bolted). Contributory
negligence may be raised if the plaintiff unreasonably attempted a rescue: see
Blackney v Clark [2013] NSWDC 144 (plaintiff injured when attempting to
rescue a small boat and its owner).
Volenti is rarely successful in such circumstances, as to deny a duty of care
because of acceptance of a risk may deter the socially desirable activity of
stranger rescuers performing the task of rescue: Chapman v Hearse (1961)
106 CLR 112.
More complicated is the situation where the rescuer contributes to the
victim’s injury, that is, claims in negligence against the good Samaritan.

Good Samaritans
13.99 One of the significant outcomes of the civil liability legislation was
the protection given to the good Samaritan providing assistance in an
emergency. The protection varies in

[page 360]

each jurisdiction. For example, in New South Wales, s 57(1) of the Civil
Liability Act 2002 (NSW) provides:
A good samaritan does not incur any personal civil liability in respect of any act or omission
done or made by the good samaritan in an emergency when assisting a person who is apparently
injured or at risk of being injured.

‘Good samaritan’ is defined as ‘a person who, in good faith and without

expectation of payment or other reward, comes to the assistance of a person
who is apparently injured or at risk of being injured’: Civil Liability Act 2002
(NSW) s 56.
There is no exclusion from liability if it was the good Samaritan’s
intentional or negligent act or omission that led to the need for the assistance
(s 58(1)) or their ability to exercise reasonable care was significantly impaired
by alcohol or drugs: s 58(2).

13.100 The protection of good Samaritans in the Victorian legislation

applies if the assistance, advice or care is given in good faith and applies even
if it was the good Samaritan’s act or omission that caused the emergency, but
not to any act or omission of the good Samaritan that occurs before the
assistance, advice or care: Wrongs Act 1958 (Vic) s 31B.
See also Civil Law (Wrongs) Act 2002 (ACT) Ch 2 Pt 2.1; Personal Injuries
(Liabilities and Damages) Act 2002 (NT) s 8; Civil Liability Act 1936 (SA) s
74; Civil Liability Act 2002 (Tas) Pt 8A; Civil Liability Act 2002 (WA) Pt 1D.
There is no equivalent protection in Queensland.

Public safety entities

13.101 In Queensland, there is no good Samaritan protection in the Civil
Liability Act 2003. However, ss 26 and 27 of the Civil Liability Act 2002 (Qld)
protect persons performing duties to enhance public safety for prescribed
entities and the prescribed entities themselves, if aid or assistance is rendered
to a person in distress. To be within the sections of the Act:
the assistance must have been provided while performing duties to
enhance public safety;
an emergency must have existed; and
the assistance must have been provided in good faith, without reckless
disregard for the safety of the person in distress or another.
The entities are prescribed in the Civil Liability Regulation 2003 (Qld) Schs
1 and 2, for example the Queensland Ambulance Service and Surf Life Saving
Queensland. The section does not affect the operation of the Law Reform Act
1995 (Qld) Pt 5, which protects medical personnel when providing assistance:
Civil Liability Act 2003 (Qld) ss 26(2) and 27(2).

Volunteers
13.102 Volunteer work within the community, like the assistance of good
Samaritans, is to be encouraged. Protection from civil liability is provided for
volunteers carrying out community work, if done in good faith.

[page 361]

The protection of volunteers is limited in that it will not apply if the

volunteer committed a criminal offence at the time of the negligence or drugs
or alcohol impaired them. Also, if the act or omission was not within the
scope of the community work of the organisation for which the volunteer
worked or it was against instructions, the volunteer cannot claim the
legislative protection.
See Civil Law (Wrongs) Act 2002 (ACT) Ch 2, Pt 2.2; Civil Liability Act
2002 (NSW) Pt 9; Personal Injuries (Liability and Damages) Act 2002 (NT) s
7; Civil Liability Act 2003 (Qld) Ch 2, Pt 3, Div 2, Subdiv 3; 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) Pt 2.

13.103 Protection is also provided to those who donate food if it was

provided in good faith for a charitable or benevolent purpose and with the
intention that the consumer would not pay for the food. See Civil Law
(Wrongs) Act 2002 (ACT) Ch 2, Pt 2.2A; Civil Liability Act 2002 (NSW) Pt
8A; Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 7A; Civil
Liability Act 2003 (Qld) Ch 2, Pt 3, Div 2, Subdiv 2; Civil Liability Act 1936
(SA) s 74A; Civil Liability Act 2002 (Tas) Pt 8B; Wrongs Act 1958 (Vic) Pt
VIB; Volunteers and Food and Other Donors (Protection from Liability) Act
2002 (WA) Pt 3.

6 Exclusion of Liability Clauses

13.104 A party may seek to modify the allocation of a risk by stipulating a
reduction, or even an exclusion, from liability. If the other party freely accepts
the exclusion, then it may be a case of voluntary assumption of the risk.
Legislation in some jurisdictions has provided protection against
unreasonable exemption clauses, for example the Contracts Review Act 1980
(NSW).
Exclusion clauses are construed strictly, so in order to exclude liability for
negligence, the exemption must either refer specifically to negligence or cover
it necessarily by referring to all bases of liability: Davis v Pearce Parking
Station Pty Ltd (1954) 91 CLR 642 at 649; Alderslade v Hendon Laundry Ltd
[1945] 1 All ER 244. Therefore, a general exclusion of liability in negligence
may be too uncertain if the negligence arises in a way that was not
contemplated by the parties. It is more likely to be effective if the exclusion
clause identifies the basis for liability: Pegler v Wang (UK) Ltd (2000) BLR
218.

13.105 Australian courts are reluctant to interpret exclusion clauses as

ousting tortious liability. See, for example, Evans v Port of Brisbane Authority
(1992) Aust Torts Reports ¶81-181, where scaffolding collapsed, injuring the
plaintiff. The defendant attempted to rely on an exclusion clause contained in
the by-laws that excluded liability ‘for any loss, damage, delay or detention
whatsoever … including loss, damage, delay or detention sustained by any
vessel, occasioned by delay, arising from riots, strikes etc, due to natural or
accidental circumstances or which may arise from any breakdown’. The
Queensland Court of Appeal held that the clause only applied to economic
loss arising from breach of contract, not to negligence leading to personal
injury.

[page 362]

Exclusion clauses were discussed in Macleay Pty Ltd (t/as Wobbies World)
v Moore (1992) Aust Torts Reports ¶81-151 at 61,151, where Brooking J, with
whom Fullagar and Gobbo JJ agreed, indicated:
There has not at any stage been any real discussion of the proper basis or bases in legal principle
of the defence or of whether the condition prevents the duty of care from arising or, on the other
hand, merely provides a shield against liability in damages. There has been no discussion of
whether the condition may afford a defence to an action in tort by reason of the existence of a
contract excluding liability, or by reason of the doctrine of volenti non fit injuria, or by reason of
‘waiver’ … or by reason of some other doctrine.
 In that case, the plaintiff was injured on a slide at the defendant’s
amusement park. She sued the defendant, who denied liability on the basis of
a large notice by the entrance to the park which purported to exclude any
liability of the defendant to any entrant. The plaintiff had not seen the notice
before entering the park. The Appeal Division of the Supreme Court of
Victoria held that the large notice did not exclude the defendant’s liability
because the defendant had not taken reasonable steps to bring it to the
plaintiff’s attention.

Further Reading
R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis
Butterworths, Sydney, 2013, Ch 10.
H Luntz, D Hambly, K Burns, J Dietrich and N Foster, Torts: Cases and
Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2012, Ch 6.

1. Commonwealth of Australia, Review of the Law of Negligence — Final Report (the Ipp Report),
October 2002, available at
<http://www.treasury.gov.au/ConsultationsandReviews/Reviews/2002/Review-of-the-Law-of-
Negligence>.
2. Queensland Legislative Assembly, Parliamentary Debates, Civil Liability Bill, 2 April 2003.
[page 363]
 Chapter 14

Limitation of Actions

1 Introduction
14.1 Under the common law, there is no prescribed limitation period
within which a plaintiff must commence their action. Only equity recognised
the possible effect of delay and required a plaintiff to act within a reasonable
time so as not to lose an equitable remedy (the doctrine of laches).
To impose prescribed limitation periods, statutes of limitations have been
passed by all legislatures in Australia, the current legislation being 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).

14.2 Limitation legislation is seen as necessary for reasons grounded in

public policy. Imposing a limitation upon the right to commence an action
ensures some certainty in the conduct of human affairs, including commerce
and the administration of justice. In Brisbane South Regional Health
Authority v Taylor (1996) 186 CLR 541 at 552; 139 ALR 1 at 8–9, McHugh J
explained the rationale of limitation periods as follows:
The effect of delay on the quality of justice is no doubt one of the most important influences
motivating a legislature to enact limitation periods for commencing actions. But it is not the
only one. Courts and commentators have perceived four broad rationales for the enactment of
limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is
oppressive, even “cruel”, to a defendant to allow an action to be brought long after the
circumstances which gave rise to it have passed. Third, people should be able to arrange their
 affairs and utilise their resources on the basis that claims can no longer be made against them.
Insurers, public institutions and businesses, particularly limited liability companies, have a
significant interest in knowing that they have no liabilities beyond a definite period. Even where
the cause of action relates to personal injuries, it will be often just as unfair to make the
shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as
it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final
rationale for limitation periods is that the public interest requires that disputes be settled as
quickly as possible.

14.3 The effect of the limitation legislation is that no court should

entertain proceedings for the enforcement of certain rights if the proceedings
are commenced after the lapse of the specified limitation period.

14.4 Within the limitation legislation in the various Australian

jurisdictions, there is little conformity. Amendments made to the legislation
over the years add further complications

[page 364]

by applying to actions on or after specific dates. For example, in New South

Wales, different provisions apply according to whether the claim for personal
injury arose before 1 September 1990, between 1 September 1990 and 5
December 2002 or on, or after, 6 December 2002. Western Australia enacted
the Limitation Act 2005 which applies to actions on or after 15 November
2005, while all other actions are regulated by the Limitation Act 1935 (WA).
Due to the possibility of a court granting an extension of the limitation period
(see 14.53), provisions relating to actions that are out of the limitation period
remain relevant.

14.5 In addition to the limitation legislation, specific statutes may also

provide a limitation period and, in such circumstances, the limitation
legislation does not apply: Limitation Act 1985 (ACT) s 4(a); Limitation Act
1969 (NSW) s 7(a); Limitation Act 1981 (NT) s 5; Limitation of Actions Act
1974 (Qld) s 7; Limitation Act 1974 (Tas) s 38; Limitation of Actions Act 1958
(Vic) s 33; Limitation Act 1935 (WA) s 49; Limitation Act 2005 (WA) s 9. In
South Australia, if the limitation period prescribed is less than 12 months, the
period is extended to 12 months by s 47 of the Limitation Act 1936 (SA).
Legislation may also provide that no limitation period applies to particular
claims: see Dust Diseases Tribunal Act 1989 (NSW) s 12A; Limitation Act
1981 (NT) s 12(2)(a); Limitation of Actions Act 1974 (Qld) s 11(2);
Limitation of Actions Act 1958 (Vic) s 27B(2)(d) (no limitation period applies
to a plaintiff suffering from a dust disease).

14.6 In litigation, the limitation period plays an important role.

Consideration must be given to:
the applicable time period according to the type of action;
the commencement date of the limitation period;
whether the period has been suspended; and
whether the court has the discretion to extend the period if it has
expired.

2 The Limitation Period

14.7 If a plaintiff fails to commence the action within the period prescribed
by the limitation legislation, the cause of action is normally extinguished and
becomes statute-barred. If a cause of action is out of the relevant period, the
defendant may plead this as a defence, the onus lying upon the plaintiff to
prove that their claim is not statute-barred: Commonwealth of Australia v
Verwayen (1990) 170 CLR 394.
Previously, limitation periods were often tied to the form of action (for
example, trespass or case), but today limitation periods are qualified by the
form of damage — either personal injury or property damage.
Personal Injury
14.8 A period of three years is the limitation in the case of personal
injuries: Limitation Act 1985 (ACT) s 16B(2); Limitation Act 1969 (NSW) ss
18A and 50C; Limitation Act 1981 (NT) s 12(1)(b); Limitation of Actions Act
1974 (Qld) s 11; Limitation of Actions Act 1936 (SA) s 36; Limitation Act
1974 (Tas) s 5(1); Limitation of Actions Act 1958 (Vic) s 5(1AA); Limitation
Act 2005 (WA) s 14(1).

[page 365]

14.9 With the legislative reforms in personal injury actions as a result of

the Review of the Law of Negligence — Final Report (the Ipp Report),1 some
jurisdictions imposed further restrictions on the commencement of actions.
For example, in Queensland, despite the fact that an action may be within the
limitation period, the Personal Injuries Proceedings Act 2002 allows a court
to strike out an action if procedural notice requirements have not been met.
Section 9(3) of the Personal Injuries Proceedings Act 2002 (Qld) requires the
plaintiff to give notice to the defendant within nine months of the incident or
the first symptoms or within one month if legal advice is sought. It is
suggested that courts will be willing to allow an action to continue (as
provided in s 43 of the Personal Injuries Proceedings Act 2002 (Qld)) that is
within the limitation period, if it is established that the plaintiff’s failure to
deliver notice as required is not due to any lack of diligence on their part, will
not prejudice the defendant and it is in the interests of justice to allow the
plaintiff to continue with their claim: Taylor v Stratford [2004] 2 Qd R 224;
Adams v Vesco Nominees Pty Ltd [2004] QDC 305.
See also Civil Law (Wrongs) Act 2002 (ACT) s 51; Personal Injuries (Civil
Claims) Act 2003 (NT) s 8 (provision not yet commenced).
Property Damage and Economic Loss
14.10 A limitation period of six years is stipulated for property damage
and economic loss claims, except in the Northern Territory where it is three
years: Limitation Act 1985 (ACT) s 11(1); Limitation Act 1969 (NSW) s 14(1)
(b); Limitation Act 1981 (NT) s 12(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).

14.11 In some jurisdictions there is separate legislation that governs

defective building work: Building Act 2004 (ACT) s 142 (10 years); Building
Act 1993 (NT) s 160 (10 years); Development Act 1993 (SA) s 73 (10 years);
Building Act 2000 (Tas) ss 255 and 256; Building Act 1993 (Vic) s 134 (10
years).

14.12 In the trespass action of conversion, specific provisions apply if

there are successive conversions of the goods. The limitation period of six
years (or three years in the Northern Territory) is generally from the date of
the accrual of the cause of action in respect of the first conversion or
detention: Limitation Act 1985 (ACT) s 18; Limitation Act 1969 (NSW) s 21;
Limitation Act 1981 (NT) s 19(1); Limitation of Actions Act 1974 (Qld) s
12(1); Limitation Act 1974 (Tas) s 6(1); Limitation of Actions Act 1958 (Vic)
s 6(1); Limitation Act 2005 (WA) s 60 (for actions accruing on or after 15
November 2005). The Limitation of Actions Act 1936 (SA) contains no
provisions for successive conversions, creating open-ended liability due to the
continuing conversion from day to day or as title was passed to others in a
chain.

[page 366]
 The reason for such provisions is that the legislatures have taken the view
that it would be wrong for a plaintiff to allow an indefinite period of time to
sue by delaying a demand. The effect of such provisions is to bar the bringing
of legal action six years after the original interference, whether suing in
conversion or detinue and irrespective of different persons committing
wrongs.
In Queensland and most other jurisdictions, there is an additional effect in
that the provision purports to extinguish title to the goods as well as the right
to sue, that is, after expiration of the limitation period, the plaintiff has no
title and cannot retake possession without becoming a trespasser. See
Limitation Act 1981 (NT) s 19(2); Limitation of Actions Act 1974 (Qld) s
12(2); Limitation Act 1974 (Tas) s 6(2); Limitation of Actions Act 1958 (Vic)
s 6(2).

14.13 As for a continuing trespass to land (see 4.46), a fresh cause of

action arises each day and, therefore, the plaintiff would have six years from
the date the continuing trespass ended: Hardy v Ryle (1829) 9 B & C 603; 109
ER 224.

3 Accrual: Commencement of the Period

14.14 Depending upon the jurisdiction, the date of the action and the type
of loss claimed, the limitation period is reckoned from either the date the
cause of action arose or accrued, or from the date of discoverability.

14.15 In the jurisdictions where the limitation period commences as at the

date of the action accruing, the distinction between trespass and actions on
the case is important. In a trespass action, which is actionable per se, the
action will accrue when the act is committed which violates the right. In
actions on the case, the cause of action will normally accrue when the damage
is suffered, as damage is required to complete the action.
Personal Injury
14.16 For claims for personal injuries, in the Australian Capital Territory
(not including personal injury that is a disease or a disorder), the Northern
Territory, Queensland and South Australia, the period commences from the
date the action accrues. In the remaining jurisdictions, the limitation period
commences at the date of discoverability.

Date of action accruing

14.17 If the limitation period commences upon the accrual of the action
and a plaintiff suffers personal injury, the damage is said to have occurred
when the injury was first suffered. Technically, this means that even if a
plaintiff were unaware of the injury, time would have commenced to run.
This could lead to a plaintiff’s action being statute-barred as they had no
reasonable means of knowledge of a possible claim.
An example of a plaintiff being unaware of their right to claim is Cartledge
v E Jopling & Sons Ltd [1963] AC 758, where the House of Lords had before it
personal injuries actions involving lung damage (silicosis) arising from the
inhalation of dust over a long period of time in the workplace. The actions
were commenced within the relevant limitation period

[page 367]

if time was calculated from when they had, or might reasonably have,
acquired knowledge of the injury. But Lord Reid stated (at 771):
… a cause of action accrues as soon as a wrongful act has caused personal injury beyond what
can be regarded as negligible, even when that injury is unknown to and cannot be discovered by
the sufferer, and that further injury arising from the same act at a later date does not give rise to
a further cause of action.

The application of that test produced manifest injustice because medical

evidence established there was some lung damage in existence which the
plaintiffs could not have become aware of even as a result of the best medical
tests, such as through X-rays. Hence, they were statute-barred.
Lord Reid commented upon the injustice as follows (at 772):
It appears to me to be unreasonable and unjustifiable in principle that a cause of action should
be held to accrue before it is possible to discover any injury and, therefore, before it is possible to
raise any action. If this were a matter governed by the common law I would hold that a cause of
action ought not to be held to accrue until when the injured person has discovered the injury or
it would be possible for him to discover it if he took such steps as were reasonable in the
circumstances. The common law ought never to produce a wholly unreasonable result, nor
ought existing authorities to be read so literally as to produce such a result in circumstances
never contemplated when they were decided. But the present question depends on statute, the
Limitation Act 1939, and s 26 of that Act appears to me to make it impossible to reach the result
which I have indicated. That section makes special provisions where fraud or mistake is
involved: it provides that time shall not begin to run until the fraud has been or could with
reasonable diligence have been discovered. Fraud here has been given a wide interpretation, but
obviously it could not be extended to cover this case. The necessary implication from that
section is that, where fraud or mistake is not involved, time begins to run whether or not the
damage could be discovered. So the mischief in the present case can only be prevented by
further legislation.

The obvious injustice of this led to the English legislation being amended
to allow extensions of time in personal injury cases. For the extension of time
limitations in Australia, see 14.53.

14.18 In Australia, Cartledge v E Jopling & Sons Ltd was often relied upon
by trial judges but, as noted by Wilcox J of the Federal Court in Nixon v Philip
Morris (Australia) Pty Ltd (1999) 165 ALR 515 at [81], it had not been upheld
or applied by the High Court or any intermediate Court of Appeal. In Wilson
v Horne (1999) 8 Tas R 363 at [55], Evans J stated:
It can be extremely difficult to determine when a personal injury was first suffered. To hold that
personal injury did not occur until the plaintiff discovered it, or it was reasonably possible for
the plaintiff to do so, simply establishes the time when it was suffered for the purposes of the
accrual of a cause of action. The cause of action cannot accrue until that date.

In Wilson v Horne, a family member had sexually abused the respondent

between the ages of five and 12. Fourteen years later, the respondent’s
repressed memories returned and she suffered post-traumatic stress disorder.
For time limitations in respect of actions for child abuse, see 14.43.

[page 368]

Date of discoverability
14.19 The limitation legislation of the Australian Capital Territory (for
personal injury that includes a disease or a disorder), New South Wales,
Tasmania, Victoria and Western Australia provides for the period to
commence from the date of discovery: Limitation Act 1985 (ACT) s 16B(2)
(causes of action arising on or after 1 July 2003); Limitation Act 1969 (NSW)
ss 50A, 50C and 50D (injuries sustained on or after 6 December 2002);
Limitation Act 1974 (Tas) s 5A(3) (actions accruing after 1 January 2005);
Limitation of Actions Act 1958 (Vic) ss 27D and 27F; Limitation Act 2005
(WA) ss 6 and 55.

14.20 The date of discovery allows the possibility that the commencement
of the limitation period could extend interminably into the future and could
leave potential defendants open to liability many years after the act or
omission. Therefore, where the date of discoverability marks the
commencement of the limitation period, some legislation provides for a long-
stop running 12 years from the date the act or omission took place. This
means that an action will be statute-barred if no injury attributable to the
defendant has occurred within 12 years of the incident: Limitation Act 1969
(NSW) s 50C(1)(b); Limitation Act 1974 (Tas) s 5A(3)(b); Limitation of
Actions Act 1958 (Vic) ss 27B(1)(b) and 27D. There is no long-stop in the
legislation of the Australian Capital Territory and Western Australia.

Property Damage
14.21 The time limitation period for property damage commences upon
the action accruing. However, identifying the time an action accrues may give
rise to problems if the property damage is caused by a latent defect.

14.22 Under the common law, in respect of latent property damage, the
decision of Cartledge v E Jopling & Sons Ltd [1963] AC 758 (see 14.17) was
applied by the House of Lords in Pirelli General Cable Works Ltd v Oscar
Faber & Partners [1983] 2 AC 1. The case involved a claim by chimney
owners against consulting engineers who had been engaged to design a
chimney. The design incorporated some material, unsuitable for the specific
construction, which then cracked, resulting in necessary extensive remedial
work. The defendants were engaged in March 1969 and the chimney built in
June and July of that year; cracks had developed by April 1970 but these could
not have been discovered with reasonable diligence until October 1972. The
damage was actually discovered in November 1977 and a writ issued in
October 1978. The House of Lords held that time ran from April 1970 when
undiscoverable cracks began to develop and so the action was statute-barred.
Legislation was passed in England permitting an extension of the limitation
period for property damage. See 14.63 for extensions of time in property
claims in Australia.

14.23 The Australian High Court also adopted the approach that the cause
of action accrues when the damage is suffered as opposed to when the
plaintiff knows, or should have known, of the cause of action: Hawkins v
Clayton (1988) 164 CLR 539; 78 ALR 69; Wardley Australia Ltd v Western
Australia (1992) 175 CLR 514; 109 ALR 247. But see also

[page 369]

Pullen v Gutteridge, Haskins & Davey Pty Ltd [1993] 1 VR 27 at 66–7 (AD),
where it was stated, ‘[t]ime began to run in the present case when the latent
defect first became known or manifest’.
14.24 The apparent harshness of the approach of Cartledge v E Jopling &
Sons Ltd and Pirelli General Cable Works Ltd v Oscar Faber & Partners is
tempered by the precise manner in which the damage is categorised and the
Australian High Court has been both liberal and creative in the way it has
approached latent property defect cases.
The damage may be viewed literally as physical property damage as did the
House of Lords in Pirelli General Cable Works Ltd v Oscar Faber & Partners.
An alternate classification is that, until the damage is rectified, the plaintiff
has suffered a diminution in the economic value of the property which is a
continuing economic loss and, normally, will be forced to finance remedial
work at a cost measured in economic terms when the remedial work is paid
for. Both of these later alternatives raise the issue of categorising the damage
as economic rather than merely physical.
Deane J took such an approach in Sutherland Shire Council v Heyman
(1985) 157 CLR 424, although he was in a minority in classifying the damage
as economic in that case. The High Court’s creativity finally emerged in
Bryan v Maloney (1995) 182 CLR 609; 128 ALR 163, with majority support
for categorisation of damage in that case as economic, notwithstanding its
origin in negligent building work. Such categorisation allowed a subsequent
purchaser to sue the original builder, notwithstanding the time lapse between
the defective building work and the expenditure on necessary rectification
work. See also Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216
CLR 515; 205 ALR 522.

14.25 As noted at 14.11, legislation exists that imposes specific limitation

periods for claims for defective buildings. For example, in Tasmania a cause
of action for any building work cannot be brought after 10 years from when
the action first accrues: Building Act 2000 (Tas) s 255. Section 256 specifies
the accrual of the cause of action with reference to occupancy.

Economic Loss
14.26 As with latent defects in property, claims for economic loss may also
give rise to issues in identifying when the cause of action accrued. In Wardley
Australia Ltd v Western Australia (1992) 175 CLR 514; 109 ALR 247, the
plaintiff was the state of Western Australia which alleged that it suffered
economic loss as a result of misrepresentations made to it by the defendants.
These misrepresentations had caused the plaintiff to agree to indemnify the
National Bank of Australia when the bank provided a credit facility to a third
party, Rothwells Ltd. The issue before the High Court was whether the
plaintiff’s cause of action had accrued at the time when the plaintiff executed
the indemnity in favour of the bank, or at the later time when the bank sought
to enforce that indemnity. In finding that the cause of action was not
complete until the plaintiff was actually required to indemnify the bank, the
court categorised the loss as merely being contingent at the time of execution
of the documents. The cause of action was not complete until

[page 370]

that contingency was fulfilled upon the request by the bank for the plaintiff to
indemnify it in regard to its losses. The court held that to find otherwise
would be ‘unjust and unwise’ as it would require a plaintiff to commence an
action on the possibility that the contingency might be fulfilled. As Mason CJ,
Dawson, Gaudron and McHugh JJ expressed it (at CLR 527; ALR 254–5):
Economic loss may take a variety of forms and, as Gaudron J noted in Hawkins v Clayton
[(1988) 164 CLR 539 at 600–1; 78 ALR 69], the answer to the question when a cause of action
for negligence causing economic loss accrues may require consideration of the precise interest
infringed by the negligent act or omission. The kind of economic loss which is sustained and the
time when it is first sustained depend upon the nature of the interest infringed and, perhaps, the
nature of the interference to which it is subjected. With economic loss, as with other forms of
damage, there has to be some actual damage. Prospective loss is not enough.

When a plaintiff is induced by a misrepresentation to enter into an agreement which is, or

proves to be, to his or her disadvantage, the plaintiff sustains a detriment in a general sense on
entry into the agreement. That is because the agreement subjects the plaintiff to obligations and
liabilities which exceed the value or worth of the rights and benefits which it confers upon the
 plaintiff. But, as will appear shortly, detriment in this general sense has not universally been
equated with the legal concept of ‘loss or damage’. And that is just as well. In many instances the
disadvantageous character or effect of the agreement cannot be ascertained until some future
date when its impact upon events as they unfold becomes known or apparent and, by then, the
relevant limitation period may have expired. To compel a plaintiff to institute proceedings
before the existence of his or her loss is ascertained or ascertainable would be unjust. Moreover,
it would increase the possibility that the courts would be forced to estimate damages on the basis
of likelihood or probability instead of assessing damages by reference to established events. In
such a situation, there would be an ever-present risk of undercompensation or
overcompensation, the risk of the former being the greater. [footnotes omitted]

In Commonwealth v Cornwell (2007) 229 CLR 519; 234 ALR 148 at [5], the
High Court stated:
… to show the existence of a completely constituted cause of action in negligence, a plaintiff
must be able to show duty, breach, and damage caused by the breach; accordingly, in the
ordinary case, it is at the time when that damage is sustained that the cause of action ‘first
accrues’ for the purposes of a provision such as s 11 of the Limitation Act [(ACT)].

That case involved a claim for economic loss arising from negligent advice,
given in 1965, concerning the plaintiff’s eligibility for membership of a
Commonwealth superannuation fund. The High Court held that the loss was
sustained upon the plaintiff’s retirement and it was upon retirement that the
action in tort accrued; therefore, the plaintiff’s claim was within the six-year
limitation period under the Limitation Act 1985 (ACT).
See also Hawkins v Clayton (1988) 164 CLR 539; 78 ALR 69, where
solicitors failed to notify the plaintiff of his appointment of executor and
bequest under a client’s will for six years. This delay led to economic loss in
the form of a fine for late payment of duty and the gift of a house falling into a
state of disrepair. The High Court held that there was no cause of action until
the assumption of the position of executor by the plaintiff and, therefore, the
action was within the limitation period.

[page 371]
 4 Suspension and Extension of the
Limitation Period
14.27 In Rhodes v Smelthurst (1838) 4 M & W 42; 150 ER 1335, it was held
that once a limitation period commences it cannot be stopped. However, the
limitation legislation in all jurisdictions allows for the suspension and the
extension of limitation periods. As with the commencement of the limitation
period, there is no uniformity among the Australian jurisdictions, particularly
in respect of extensions of time.

Suspension of Time
14.28 The limitation period is suspended in a number of circumstances. In
all jurisdictions, the limitation period is suspended (that is, does not
commence) while the plaintiff is under a legal disability, there is fraud or
concealment, and, in some jurisdictions, if the plaintiff was a victim of abuse
as a child.

14.29 The Ipp Report2 examined the limitation of actions in respect of

personal injury and made specific recommendations as to children and
incapacitated persons. The recommendations imposed responsibility for
commencing an action upon the parents, guardian or administrator: at 6.48.

Legal disability
14.30 In all jurisdictions, for persons under a legal disability, the limitation
period (except for claims for personal injury) does not commence until the
cessation of the disability. For example, in Queensland, s 29 of the Limitation
of Actions Act 1974 provides that a plaintiff under a legal disability at the
time the cause of action accrues, has six years from the date they cease to be
under the disability to commence an action.
See also Limitation Act 1985 (ACT) s 30 (three years from disability
ceasing); Limitation Act 1969 (NSW) s 52 (three years from disability
ceasing); Limitation Act 1981 (NT) s 36 (three years from disability ceasing);
Limitation of Actions Act 1936 (SA) s 45 (extension of time while disability
continues up to 30 years from accrual of action); Limitation of Action Act
1974 (Tas) s 26 (six years from disability ceasing, unless lesser number of
years is prescribed for such an action); Limitation of Actions Act 1958 (Vic) s
23 (six years from disability ceasing).

14.31 ‘Disability’ is defined in a variety of ways in the legislation:

Limitation Act 1985 (ACT) s 2, Dictionary; Limitation Act 1969 (NSW) s
11(3); Limitation Act 1981 (NT) s 4(1); Limitation of Actions Act 1974 (Qld)
s 5(2); Limitation of Actions Act 1936 (SA) s 45(2); Limitation of Action Act
1974 (Tas) ss 2, 26; Limitation of Actions Act 1958 (Vic) s 3. The Western
Australian legislation contains no general disability provision; instead,
specific provisions apply depending upon the age of the plaintiff (Limitation
Act 2005

[page 372]

(WA) ss 29–32) or whether they have a mental disability: Limitation Act 2005
(WA) ss 35–36. The Tasmanian and Victorian legislation includes the
plaintiff’s involvement in war in which the Commonwealth is involved also as
a disability: Limitation of Action Act 1974 (Tas) s 28; Limitation of Actions
Act 1958 (Vic) s 23(2).

14.32 Children All of the limitation legislation recognises that the

limitation period is suspended while the plaintiff is under the age of 18 years
for actions other than claims for personal injury. Prior to the implementation
of the recommendations of the Ipp Report, the limitation period was
suspended if the plaintiff was a child until the child reached the age of 18
years. See, for example, Flemming v Gibson (2001) 34 MVR 40. The Ipp
Report recommendations were not adopted by all jurisdictions.

14.33 In New South Wales and Victoria, instead of suspending the

limitation period during the minority of the plaintiff, the onus is placed upon
the parents or guardian to commence an action within the relevant time
period: Limitation Act 1969 (NSW) s 50C; Limitation of Actions Act 1958
(Vic) s 27E.
If there is no parent or guardian, then the child should be treated as being
under a disability and the time period suspended: Limitation Act 1969 (NSW)
s 50F; Limitation of Actions Act 1958 (Vic) s 27J. However, if the parent or
guardian, or a person in a close relationship with the parent or guardian, is
the potential defendant, different rules apply: see 14.45.

14.34 In Western Australia, a plaintiff under the age of 15 years has six
years to commence an action from the date of the action accruing: Limitation
Act 2005 (WA) s 30. If the plaintiff is 15, 16 or 17 years old, no action may be
commenced once they have attained the age of 21 years, but if they were
under the age of 18 at the time the action accrued and were without a
guardian at any time before turning 18, the limitation period is suspended for
that time: Limitation Act 2005 (WA) ss 31 and 32. This applies to all claims
by minors, not just claims for personal injury.

14.35 The Ipp Report recommendations have not been adopted by the
Australian Capital Territory, the Northern Territory, Queensland, South
Australia or Tasmania. In the Australian Capital Territory, the Northern
Territory, Queensland, South Australia and Tasmania, a child is still
considered to be under a legal disability in all legal actions and the time
period is suspended until the child reaches the age of 18 years: Limitation Act
1985 (ACT) s 30; Limitation Act 1981 (NT) s 36; Limitation of Actions Act
1974 (Qld) ss 5(2) and 29; Limitation of Actions Act 1936 (SA) s 45;
Limitation Act 1974 (Tas) ss 2 and 26(1).
 However, procedural provisions have been enacted in the Australian
Capital Territory, Queensland and South Australia if the claim is for personal
injuries.

14.36 In Queensland, in addition to the general suspension of time while

the plaintiff is a child, if the claim is for personal injury the parent or guardian
of an injured minor must give notice to the defendant within six years of the
parent or guardian knowing, or ought reasonably to have known, that the
personal injury had occurred or within 18 months of seeking legal advice,
whichever is the earlier: Personal Injuries Proceedings Act 2002

[page 373]

(Qld) s 20C. If the required notice is not given, the court has the power to
strike out the claim even if the action was commenced within the relevant
time period under the Limitation of Actions Act 1974 (Qld). If the parent or
guardian fails to provide notice as required, an application must be made to
the court.

14.37 In the Australian Capital Territory, the limitation commences at the

child turning 18 years, and the parent or guardian must give notice to the
defendant within six years of the accident or six years of the plaintiff or the
plaintiff’s parent or guardian knowing of the injury: Limitation Act 1985
(ACT) s 30A. If the claim is related to health services, the time limitation is
six years from the date of injury or the date of discoverability: s 30B. In South
Australia, the limitation commences at the child turning 18 years, but if the
child is under 15 years, the parent or guardian must give notice to the
defendant within six years of the incident: Limitation of Actions Act 1936
(SA) s 45A.

14.38 Mental or physical disability The limitation period is suspended

for a plaintiff who is under a physical or mental disability until the disability
ceases.

14.39 In Queensland and Victoria, the definition of ‘disability’

encompasses persons of unsound mind: Limitation of Actions Act 1974 (Qld)
s 5(2); Limitation of Actions Act 1958 (Vic) s 3(2). Section 5(3) of the
Limitation of Actions Act 1974 (Qld) provides that a person is of unsound
mind if they are an involuntary patient under the Mental Health Act 2000
(Qld), a forensic disability client under the Forensic Disability Act 2011 (Qld)
or in safe custody of the Governor as allowed by s 647 of the Criminal Code
(Qld). In Victoria, a person is presumed to be of unsound mind if they are a
protected or represented person under the Guardianship and Administration
Act 1986 (Vic): Limitation of Actions Act 1958 (Vic) s 3(3).

14.40 In the other jurisdictions, the inability to manage one’s affairs is

expressed in a variety of ways but, generally, involves the plaintiff being
unable to manage their affairs due to mental illness or disorder, brain damage
or senility: Limitation Act 1985 (ACT) Dictionary definition of ‘under a
disability’; Limitation Act 1969 (NSW) s 11(3)(b); Limitation Act 1981 (NT) s
4(1); Limitation of Actions Act 1936 (SA) s 45(2); Limitation Act 1974 (Tas) s
2(2)(b); Limitation Act 2005 (WA) s 3(1).
In Kirby v Leather [1965] 2 QB 367, it was held that a person is of unsound
mind when they are incapable of managing their affairs as a reasonable
person would. See also King v Coupland [1981] Qd R 121.

14.41 Physical disability may also fall within the definitions of ‘disability’:
Limitation Act 1985 (ACT) Dictionary of ‘under a disability’; Limitation Act
1969 (NSW) s 11(3)(b)(i); Limitation Act 1981 (NT) s 4(1).

14.42 Prisoners Plaintiffs who are imprisoned may be considered by the

legislation to be under a legal disability during the term of their
imprisonment. The limitation legislation of New South Wales and the
Northern Territory expressly includes prisoners: Limitation Act 1969 (NSW)
s 11(3); Limitation Act 1981 (NT) s 4(1). However, such plaintiffs are
expressly excluded by the South Australian statute: Limitation of Actions Act
1936 (SA) s 46.

[page 374]

Victims of child abuse

14.43 Sexual abuse of a child may be civilly pursued as an action in
trespass (assault and/or battery), negligence or intentional infliction of
psychiatric harm: Wilkinson v Downton [1897] 2 QB 57.
In Stingel v Clark (2006) 226 CLR 442; 228 ALR 229, the High Court had to
consider whether a claim in trespass to person for intentional interference
through sexual abuse during the childhood of the plaintiff was statute-barred
under the Victorian limitation legislation. Section 5(1A) of the Limitation of
Actions Act 1958 (Vic) provides that no action for damages for negligence,
nuisance or breach of duty, where the damages claimed by the plaintiff
includes damages for personal injuries, may be brought after the expiration of
six years from when the plaintiff knows they have suffered the personal injury
and they know the injuries were caused by the act or omission of some
person. The question before the court was whether an intentional trespass
was a breach of duty. By a majority of 5:2, it was held that an intentional
trespass was a breach of duty. Gleeson CJ, Callinan, Heydon and Crennan JJ
stated (at [17]):
There is no discernible difference, in point of legislative policy, between victims of intentional
and unintentional torts. No legislative purpose is served by putting the perpetrators of
intentional torts in a better position than the perpetrators of unintentional torts. There being …
two constructions reasonably open, that should be preferred which produces a fair result that
promotes the purpose of the legislation.

In W v Eaton [2011] TASSC 4, the High Court’s reasoning was applied to

the Tasmanian legislation (personal injury claims arising from negligence,
nuisance, or breach of duty: Limitation Act 1974 (Tas) s 5). See also New
South Wales v Radford [2010] NSWCA 276.
In Stubbings v Webb [1993] AC 498; 1 All ER 322, the House of Lords held
that, as the plaintiff’s claim was made in trespass to the person, a period of six
years from cessation of the age disability applied by virtue of the English
legislation, with no allowance for any extension. Extensions of the period
were allowed by the relevant legislation if the claim was one for damages for
personal injury arising from negligence, breach of duty or nuisance, but not
for trespass. Therefore, the action was statute-barred. This case was overruled
in A v Hoare [2008] 1 AC 844, the House of Lords referring to the decision of
Stingel v Clark (2006) 226 CLR 442; 228 ALR 229 with approval.

14.44 The issue of child abuse and limitation periods has caused much
debate and was considered by the Ipp Report. Recognising that victims of
child abuse often repress memories, it was recommended that special
provision had to be made to allow a victim to seek compensation, despite the
lapse of years: see Ipp Report at [6.54], Recommendation 25.3

[page 375]

14.45 In Tasmania and Western Australia, in actions by a child who has

been injured by a parent, guardian or close associate of their parent or
guardian, the time limitation does not commence until that person turns 25:
Limitation Act 1974 (Tas) s 26(7); Limitation Act 2005 (WA) s 33. New South
Wales and Victoria have gone further, removing the limitation period for all
relevant child abuse claims: Limitation Act 1969 (NSW) s 6A (inserted by
Limitation Amendment (Child Abuse) Act 2016); Limitation of Actions Act
1958 (Vic) Pt IIA, Div 5 (inserted by Limitation of Actions Amendment
(Child Abuse) Act 2015 (Vic)).

Fraud or improper conduct

14.46 In all Australian jurisdictions, except Western Australia (for actions
accruing on or after 15 November 2005), the limitation period in cases of
fraud is suspended. An action based upon fraud requires that fraud is an
element of the action, for example fraudulent misrepresentation.

14.47 There are some jurisdictional differences in the provisions. In

Queensland, s 38(1) of the Limitation of Actions Act 1974 (Qld) provides that
if the action is based upon the fraud of the defendant or their agent or the
defendant has fraudulently concealed the right of action, the limitation period
commences when the plaintiff discovers the fraud or when they could have
discovered it with reasonable diligence. See also Limitations Act 1974 (Tas) s
32(1); Limitation of Actions Act 1958 (Vic) s 27.

14.48 In the Australian Capital Territory, New South Wales and the
Northern Territory, the time before the plaintiff discovers the fraud, or could
have discovered the fraud with reasonable diligence, is not included in the
limitation period. In these jurisdictions, the limitation period is also
suspended if the identity of the defendant is concealed: Limitation Act 1985
(ACT) s 33(1); Limitation of Actions Act 1969 (NSW) ss 55(1) and 56;
Limitation Act 1981 (NT) s 42(1).

14.49 In South Australia and Western Australia (in respect of actions

accruing before 15 November 2005), the limitation legislation only suspends
equitable proceedings involving fraud for the recovery of land or rent:
Limitation of Actions Act 1936 (SA) s 25; Limitation Act 1935 (WA) s 27.

14.50 The Limitation Act 2005 (WA), which applies to actions accruing on
or after 15 November 2005, does not suspend actions of fraud. Instead, fraud
is a ground upon which the limitation period may be extended up to three
years from when the action ought reasonably to have been commenced:
Limitation Act 2005 (WA) s 38.

14.51 ‘Fraud’ has been given a wider meaning than common law ‘deceit’
by the courts. In Seymour v Seymour (1996) 40 NSWLR 358 at 372, Mahoney
ACJ stated:
In my opinion, there must be in what is involved a consciousness that what is being done is
wrong or that to take advantage of the relevant situation involves wrongdoing.

14.52 The plaintiff bears the onus of showing that they could not have
discovered the fraud or mistake if they had exercised reasonable diligence:
Peco Arts Inc v Hazlitt Gallery Ltd [1983] 3 All ER 193 (drawing bought as an
original by a famous 19th-century artist discovered to be a reproduction 10
years after purchase).

[page 376]

Extension of Time
14.53 The legislation differs from jurisdiction to jurisdiction in terms of
the circumstances and extent of the discretion in the courts to extend the
limitation period. Nearly all jurisdictions permit some extension in the case of
personal injuries, but only a few jurisdictions allow an extension of the
limitation period in claims of property.

Personal injury
14.54 In respect of claims for personal injury, the limitation legislation of
all jurisdictions provides the means for an extension of the limitation period,
but in a variety of ways.

14.55 For claims for personal injury on or after 1 July 2003, a court cannot
extend the limitation period in the Australian Capital Territory: Limitation
Act 1985 (ACT) ss 16B, 36(5)(A). For injuries before 1 July 2003, a discretion
may be exercised if it is just and reasonable to do so: Limitation Act 1985
(ACT) s 36(2).
14.56 In New South Wales, a court may extend the limitation period for
up to five years if it is ‘just and reasonable’, if the action accrued on or after 1
September 1990 but before 6 December 2002: Limitation Act 1969 (NSW) s
60C. However, if the claim is based upon a latent injury, the limitation period
may be extended indefinitely: Limitation Act 1969 (NSW) ss 60F–60J. If the
action accrued on or after 6 December 2002, a plaintiff may apply for an
extension of the 12-year long-stop limitation as imposed by s 50C, but it must
be proven that the extension is ‘just and reasonable’ and that the extension
may not extend ‘beyond the period of 3 years after the date on which the
cause of action is discoverable’: Limitation Act 1969 (NSW) s 62A(2). If the
extension is in respect of an action that accrued before 1 September 1990,
there must be ‘a material fact of a decisive character relating to the cause of
action that was not within the means of knowledge of the applicant until a
date after the commencement of the year preceding the expiration of the
limitation period for the cause of action’: Limitation Act 1969 (NSW) s 58.

14.57 In the Northern Territory and South Australia, the court must be
satisfied that the grant of the extension is just in all of the circumstances:
Limitation Act 1981 (NT) s 44; Limitation of Actions Act 1936 (SA) s 48.

14.58 In Queensland, the court must be satisfied a material fact of decisive

character exists, before it will exercise its discretion to extend the limitation
period to one year after the plaintiff became aware of the material fact:
Limitation of Actions Act 1974 (Qld) s 31(2).
Section 30(1)(a) of the Limitation of Actions Act 1974 (Qld) states that
material facts include:
the fact of the occurrence of the negligence, trespass, nuisance or
breach of duty;
the identity of the defendant;
the fact that the negligence, trespass, nuisance or breach of duty has
caused personal injury; and
 the nature and extent of the personal injury caused by the negligence,
trespass, nuisance or breach of duty.

[page 377]

14.59 To be of a decisive nature, the material fact must make a reasonable

person, with knowledge of those facts and having appropriate advice, regard
those facts as showing that an action would have a reasonable chance of
success and result in an award of damages to justify the action and that it is in
the person’s interests to bring an action: Limitation of Actions Act 1974 (Qld)
s 30(1)(b). ‘Appropriate advice’ is defined as the advice of a competent
person, qualified in their respective fields: 30(2).
Section 30(1)(c) provides that a fact is not within the means of knowledge
of a person at a particular time if they do not know the fact at that time and
have taken all reasonable steps to discover that fact. This refers to the means
of knowledge of the person, not that of a reasonable person: Dick v University
of Queensland [2000] 2 Qd R 476.
In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541;
139 ALR 1, the plaintiff alleged that a doctor in the employ of the defendant
caused her to have a hysterectomy when alternative treatments were available
and that she was not advised of these alternatives by the doctor. Although
Kirby J disagreed with the final orders made, all the judges agreed that the test
to be applied in regard to the possible prejudice to the prospective defendant
was referable to the state of affairs at the time of the application for the
extension of time. It was not determined by a comparison with the situation
which would have existed towards the end of the original three-year
limitation period. In the circumstances of this case, when the operation took
place more than 17 years before and the operating doctor, Dr Chang, had not
been located, McHugh J (with whom Dawson J agreed) commented (at CLR
555; ALR 11):
 If the action had been brought within time, it would have been irrelevant that, by reason of the
delay in commencing the action, Dr Chang might have had little independent recollection of his
conversation with the applicant and that the defendant might have had difficulty in fairly
defending itself. But once the potential liability of the defendant had ended, its capacity to
obtain a fair trial, if an extension of time were granted, was relevant and important. The general
rule that actions must be commenced within the limitation period should therefore prevail once
the defendant has proved the fact or the real possibility of significant prejudice. In such a
situation, actual injustice to one party must occur. It seems more in accord with the legislative
policy underlying limitation periods that the plaintiff’s lost right should not be revived than that
the defendant should have a spent liability reimposed upon it.

14.60 The power to extend the limitation period will only be granted if
justice is best served; therefore, even if the court is satisfied that a material fact
of decisive character exists, an extension of time is not automatic. In Brisbane
South Regional Health Authority v Taylor, Toohey and Gummow JJ
commented (at CLR 544; ALR 5):
The discretion conferred by the subsection is to order an extension of the limitation period. It is
a discretion to grant, not a discretion to refuse, and on well established principles an applicant
must satisfy the court that grounds exist for exercising the discretion in his or her favour. There
is an evidentiary onus on the prospective defendant to raise any consideration telling against the
exercise of the discretion. But the ultimate onus of satisfying the court that time should be
extended remains on the applicant.

14.61 In Tasmania, if the cause of action accrues on or after 1 January

2005, a judge may extend the limitation period having regard to the justice of
the case, in particular,

[page 378]

whether time has prejudiced a fair trial, the extent and nature of the plaintiff’s
loss and the defendant’s conduct: Limitation Act 1974 (Tas) s 5A(5). For
injuries prior to this date, an extension may be granted if it is thought to be
just and equitable, but may not exceed six years from the date of accrual of
the action: Limitation Act 1974 (Tas) s 5(3). The Victorian legislation has a
similar approach: see Limitation of Actions Act 1958 (Vic) ss 23A (cause of
action accrued before 21 May 2003), 27K (cause of action accrued on or after
21 May 2003).

14.62 In Western Australia, a court may extend the limitation period up to

three years from when the plaintiff was aware, or ought reasonably have been
aware, of the cause of their injury and to whom the act or omission was
attributable and their identity: Limitation Act 2005 (WA) s 39(4). To grant
the extension, the court must be satisfied that these three factors were not
known to the plaintiff before the limitation period expired: Limitation Act
2005 (WA) s 39(3).

Property damage
14.63 The limitation legislation of only three jurisdictions permits an
extension in property damage. In the Northern Territory and South Australia,
a court may extend by any period if material facts have not been ascertained
and it is just and equitable: Limitations Act 1981 (NT) s 44; Limitation of
Actions Act 1936 (SA) s 48. In the Australian Capital Territory, a court may
extend the limitation period up to 15 years from the cause of action arising if
it is just and equitable: Limitation Act 1985 (ACT) s 40.

5 Contribution Between Tortfeasors

14.64 The limitation legislation in the Australian Capital Territory, New
South Wales, the Northern Territory and Queensland restricts an action for
contribution as between tortfeasors. In those jurisdictions, the limitation
period is either two years from the date the cause for contributions accrues or
four years from the date the limitation of the principal cause of action ends,
whichever expires first: Limitation Act 1985 (ACT) s 21; Limitation Act 1969
(NSW) s 26; Limitation Act 1985 (NT) s 24; Limitation of Actions Act 1974
(Qld) s 40.
14.65 In South Australia, an action for contribution must be brought
within the original limitation period that applies to the claim or within two
years after the damages payable are determined, whichever is the longer
period: Limitation of Actions Act 1936 (SA) s 6(4).

14.66 In Tasmania, the action must be brought within 12 months of the

original writ being served: Wrongs Act 1954 (Tas) s 3(5). Victoria is similar
but provides that proceedings must be commenced either within the 12
months or within the time limitation of the action, whichever is the longest:
Wrongs Act 1958 (Vic) s 24(4).

14.67 In Western Australia, a two-year time limitation applies from the

date the cause of action accrued: Limitation Act 2005 (WA) s 17.
For more detail on contribution between tortfeasors, see Chapter 21.

[page 379]

Further Reading
R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis
Butterworths, Sydney, 2013, Ch 28.
H Luntz, D Hambly, K Burns, J Dietrich and N Foster, Torts: Cases and
Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2012, Chs 5
and 11.
B Mathews, ‘Limitation Periods and Child Sexual Abuse Cases: Law,
Psychology, Time and Justice’ (2003) 11 TLJ 218.
—, ‘Post-Ipp Special Limitation Periods for Cases of Injury to a Child
by a Parent or Close Associate: New Jurisdictional Gulfs’ (2004) 12 TLJ
239.
1. Commonwealth of Australia, Review of the Law of Negligence — Final Report (the Ipp Report),
October 2002, available at
<http://www.treasury.gov.au/ConsultationsandReviews/Reviews/2002/Review-of-the-Law-of-
Negligence>.
2. Commonwealth of Australia, Review of the Law of Negligence — Final Report (the Ipp Report),
October 2002, available at
<http://www.treasury.gov.au/ConsultationsandReviews/Reviews/2002/Review-of-the-Law-of-
Negligence>.
3. For a discussion of time limits and claims of child abuse, see B Mathews, ‘Limitation Periods and
Child Sexual Abuse Cases: Law, Psychology, Time and Justice’ (2003) 11 TLJ 218; and B Mathews,
‘Post-Ipp Special Limitation Periods for Cases of Injury to a Child by a Parent or Close Associate:
New Jurisdictional Gulfs’ (2004) 12 TLJ 239.
[page 381]
 Chapter 15

Judicial Remedies

1 Introduction
15.1 Reference has been made in earlier chapters to the remedies available
in relation to the specific torts under consideration. This chapter seeks to
consolidate some of that material and consider the judicial remedies available
to a plaintiff in respect of injury suffered as a result of the tortious conduct of
another.
While the common law remedy of damages will be considered broadly,
special reference will be made to the assessment of damages in personal
injuries cases for negligence.

2 The Equitable Remedies

15.2 Unlike relief by way of damages at common law, equitable remedies
are at the discretion of the court. The court may refuse to exercise its
discretion for a number of reasons, including:
another equally or more appropriate remedy is at hand (Forster v
Jododex Australia Pty Ltd (1972) 127 CLR 421);
the issue is theoretical (Draper v British Optical Association [1938] 1
All ER 115);
the plaintiff has no real connection with, or interest in, the matter
(Anderson v Commonwealth (1932) 47 CLR 50);
 traditional equitable principles such as the plaintiff’s unclean hands
(Meyers v Casey (1913) 17 CLR 90);
public interest weighs against the exercise of the discretion (Miller v
Jackson [1977] 3 QB 966);
it would be impossible for the defendant to obey a decree; or
the damage is not substantial.
The principal equitable remedies are:
the declaratory judgment;
account; and
injunction.

[page 382]

Declaration
15.3 A declaratory judgment is based on specific facts, declares the legal
rights of parties and is a binding decision upon the parties: Bass v Permanent
Trustee Co Ltd (1999) 198 CLR 334; 161 ALR 399 at [48]. Such a judgment,
however, does not contain any order.
Initially, a common law court could not make a declaration respecting the
rights of parties, although the courts of equity had the power to make a
declaration of right where other consequential relief was involved. Under the
Judicature Act system, introduced in the second half of the 19th century, the
administration of the common law and equity courts was fused, and the right
to make a declaration was extended to common law courts.

15.4 The jurisdiction to grant declaratory relief is almost unlimited,

subject only to matters of discretion: Hanson v Radcliffe Urban District
Council [1922] 2 Ch 490. The advantages of this remedy are that:
 it is binding upon the parties and cannot be relitigated, that is, it is res
judicata;
it is a comparatively speedy remedy and, as such, usually cheaper than
other remedies;
it avoids protracted litigation;
it enables negative relief to be given, that is, a declaration that someone
is not in breach of a legal rule; and
it can be given in circumstances where other relief might not be
available.
Some legislation specifically allows declaratory judgments: see, for
example, Competition and Consumer Act 2010 (Cth) s 87(2)(a).

15.5 The principal disadvantage of this remedy is that it provides no

consequential relief and will, therefore, not be a satisfactory remedy, standing
alone, in cases where substantial damage has occurred because the injured
party will require compensation for the damage. It is not appropriate for cases
of negligence, but may be appropriate in some cases of disputed title to goods
or land or in respect of nuisance. It is often given in place of nominal
damages.

Account
15.6 The remedy of account requires that the financial advantage gained
by the defendant is repaid to the plaintiff. The remedy was initially available
at common law, but was limited and its procedure cumbersome and so the
equity courts’ jurisdiction became more attractive: Sturton v Richardson
(1844) 13 M & W 17; 153 ER 7. The remedy is particularly useful in
commercial matters, such as industrial property cases, for example those
involving passing off: see Chapter 24. Account of profit is not available in tort
unless exemplary damages are available. See Hospitality Group Pty Ltd v
Australian Rugby Union Ltd (2001) 110 FCR 157 at 197, where Hill and
Finkelstein JJ stated:
… under presently accepted principles, an injured plaintiff cannot claim a windfall to prevent a
wrongdoer profiting from his own wrong, except in those cases where exemplary damages are
available and it is proper that illicit profits are taken into account in assessing the quantum of
the award.1

[page 383]

Injunction
15.7 An injunction is a court order that either prohibits a party from
committing an act (prohibitory injunction) or requires them to do a specified
act (mandatory injunction). An injunction may be perpetual in the sense that
it is granted permanently to compel the defendant to, or prohibit him or her
from, some action. The remedy of injunction is more appropriate in cases of
nuisance, trespass to land or chattels, occasionally defamation, and industrial
property cases.

15.8 An injunction is a discretionary order and ‘would ordinarily only be

ordered if damages were not ascertainable or otherwise not an adequate
remedy’: Bankstown City Council v Alamdo Holdings Pty Ltd (2005) 223 CLR
660 at [11]. The court may take a wide range of factors into account to
determine whether it is appropriate to grant an injunction, for example the
plaintiff’s conduct, any hardship the injunction may cause, and whether
compliance is in fact possible.

Prohibitory injunction
15.9 Prior to the Judicature Acts, only a court of equity could issue a writ
in the nature of a prohibition. A prohibitory injunction may be granted at the
discretion of the court and it will order the party not to do, or to cease from
doing the specified act. Where the tort has not yet been committed but is
threatened, a quia timet (‘because he fears’) injunction may be granted to
restrain the threatened act: Attorney-General v Nottingham Corporation
[1904] 1 Ch 673. In British Telecommunications plc v One in a Million Ltd
[1998] 4 All ER 476, the court granted a quia timet injunction to restrain the
defendants from their threat to pass off and infringe the plaintiffs’ registered
trademarks by registration of internet domain names.

Mandatory injunction
15.10 A mandatory injunction may be granted to compel the defendant to
perform some positive act. For example, in Break Fast Investments Pty Ltd v
PCH Melbourne Pty Ltd (2007) 20 VR 311, a mandatory injunction was
granted requiring the appellant to remove metal cladding from a building as
it intruded onto the respondent’s property. This was despite the fact that the
cost of removal was $30,000. The court held that the hardship was no
disproportionate to the infringement of the plaintiff’s rights: see 4.68. In
Gales Holdings Pty Ltd v Tweed Shire Council [2011] NSWSC 1128, a
mandatory injunction was refused as an order for construction of drain works
to prevent the continuation of a nuisance would have involved obligations to
and of third parties requiring supervision. However, an award of damages
would allow the plaintiff to install a drainage system on his own land to
rectify the nuisance.

Interlocutory injunction
15.11 An interlocutory injunction is temporary or provisional and is
granted summarily, pending the hearing of the action. It will be granted only
where the plaintiff can show probable entitlement to relief on the full hearing
of the action. There is no known case of an injunction being granted to
restrain the commission of the tort of negligence, and there are doubts
expressed concerning the availability of an injunction in respect of trespass to
person: see Fitzwilliam v Beckman [1978] Qd R 398 and 3.90.
 [page 384]

3 Damages at Common Law

15.12 Most principles in the law of torts are premised upon the provision
of pecuniary satisfaction for the wrong suffered by the plaintiff, that is,
damages are the most realistic and substantial form of remedy so far as
money can compensate for the wrong.

The Categories of Damages

15.13 There are different categories of damages, classified according to the
objective of the award. The different categories are:
nominal;
contemptuous;
exemplary (or punitive);
aggravated; and
compensatory.

Nominal damages
15.14 Nominal damages are awarded where a plaintiff has proved a
violation of a legal right without any consequent actual damage. Therefore, it
is limited to actions that are actionable per se. For example, nominal damages
may be awarded for trespass where there is no actual damage: Law v Wright
[1935] SASR 20; Hill v Cooke [1958] SR (NSW) 49. See, generally, The
Mediana [1900] AC 113.

15.15 Nominal damages cannot be awarded where damage is the gist of

the cause of action. In such actions (for example, negligence), the actual loss
of the plaintiff must be compensated and, therefore, compensatory damages
are awarded. Sometimes the term ‘nominal damages’ is not used in its correct
sense and instead is used to describe an award of damages for loss in a small
amount. For example, in Australian Broadcasting Corp v O’Neill (2006) 227
CLR 57; 229 ALR 457, the High Court referred an award of nominal damages
for the damage to the respondent’s reputation. In that case, the court held
that the publication of defamatory imputations that the respondent was a
murder suspect would only attract an award of nominal damages, that is, not
substantial, as the respondent was already a convicted murderer serving a life
sentence.

15.16 Where the plaintiff suffers damage, but is unable to quantify the loss,
it is not a case for nominal damages, and the court must attempt to arrive at a
reasonable, substantial sum: Adams v Ascot Iron Foundry Pty Ltd (1968) 72
SR (NSW) 120.

15.17 An award will usually carry with it the costs of the action, which
means the defendant will have to pay both the plaintiff’s legal costs as well as
the costs of unsuccessfully defending the action. Also, awards of nominal
damages have declined due to the preference of courts to make declarations.2

[page 385]

Contemptuous damages
15.18 Contemptuous damages are awarded to unmeritorious plaintiffs
who are, nevertheless, entitled to succeed. Such an award expresses the court’s
displeasure with the plaintiff’s conduct (as frivolous, vexatious or vindictive).
As to the amount awarded, in Habib v Nationwide Pty Ltd (No 2) [2010]
NSWCA 291 at [44], it was explained:
The authorities which refer to such damages tend to refer to amounts of one shilling (Connelly v
Sunday Times), a farthing (Martin v Benson [1927] 1 KB 771) or a halfpenny (Pamplin v Express
 Newspapers Ltd (No 2) [1988] 1 All ER 282; [1988] 1 WLR 116). A comparable amount in
Australia would be $1.

A plaintiff receiving contemptuous damages is unlikely to be awarded

costs: Connolly v Sunday Times Publishing Co Ltd (1908) 7 CLR 263; 15 ALR
29.

Exemplary damages
15.19 Sometimes exemplary damages, also described as punitive or
vindictive damages, are awarded in respect of the defendant’s conduct in
cases where there has been some conscious wrongdoing, in what is usually
described as ‘contumelious’ disregard of the plaintiff’s right (‘contumelious’
meaning stubborn and insulting): Uren v John Fairfax & Sons Pty Ltd (1966)
117 CLR 118. The function is partly punitive and partly deterrent: Uren v
John Fairfax & Sons Pty Ltd; Australian Consolidated Press Ltd v Uren [1969]
1 AC 590; Egan v State Transport Authority (1982) 31 SASR 481.

15.20 The purposes and availability of exemplary damages are discussed

comprehensively in Lamb v Cotogno (1987) 164 CLR 1; 74 ALR 188; see also
Gray v Motor Accident Commission (1998) 196 CLR 1; 158 ALR 485. The
assessment of exemplary damages is based on all of the facts, including the
means of the defendant, any provocation by the plaintiff and whether any
punishment has already been imposed on the defendant. Therefore,
exemplary damages can be awarded against one or only some of several joint
tortfeasors: XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd
(1985) 155 CLR 448; 57 ALR 639.

15.21 Exemplary damages were rarely awarded in negligence cases, but see
cases such as Andary v Burford (1994) Aust Torts Reports ¶81-302
(exemplary damages reduced on appeal due to ‘harridan’-like behaviour of
the plaintiff).
However, with the negligence reforms, some jurisdictions abolished the
power of the courts to award exemplary damages in cases of personal injury,
with limited exceptions: Civil Liability Act 2002 (NSW) s 21 (no exemplary
damages if negligent act or omission caused death or injury); Personal
Injuries (Liabilities and Damages) Act 2003 (NT) s 19 (no exemplary damages
in respect of personal injury); Civil Liability Act 2003 (Qld) s 52 (no
exemplary damages unless it was an unlawful, intentional act with the intent
to cause personal injury, or unlawful sexual assault or unlawful sexual
misconduct).

15.22 Other legislation has restricted the awarding of exemplary damages,

for example in industrial accidents (Workers Compensation Act 1987 (NSW)
s 151R; Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 306B;
Accident Compensation Act 1985 (Vic) ss 134AB(22)(c) and 134A(7)(c));
and motor vehicles accidents: Motor Accidents

[page 386]

Compensation Act 1999 (NSW) s 144; Motor Accident Insurance Act 1994
(Qld) s 55; Motor Vehicles Act 1959 (SA) s 113A; Transport Accident Act
1986 (Vic) s 93(7)(c).

15.23 There is no right to exemplary damages for defamation: 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.

Aggravated damages
15.24 Aggravated damages are a form of compensatory damages which are
awarded because the defendant’s reprehensible conduct aggravated the injury
to the plaintiff’s dignity or feelings: see Uren v John Fairfax & Sons Pty Ltd
(1966) 117 CLR 118. The claim must be based upon a cause of action that
protects an interest in dignity, for example defamation, which protects
personal reputation (Hulton v Jones [1910] AC 20), or intentionally wrongful
conduct, but not negligence: Kralj v McGrath [1986] 1 All ER 54.
As with exemplary damages, aggravated damages cannot be awarded for
personal injury in New South Wales, the Northern Territory and Queensland:
see 15.21. The defamation legislation imposes restrictions on the award of
aggravated damages: Civil Law (Wrongs) Act 2002 (ACT) s 139G;
Defamation Act 2005 (NSW) s 36; Defamation Act 2006 (NT) s 33;
Defamation Act 2005 (Qld) s 36; Defamation Act 2005 (SA) s 34; Defamation
Act 2005 (Tas) s 36; Defamation Act 2005 (Vic) s 36; Defamation Act 2005
(WA) s 36.

Compensatory damages
15.25 Compensatory damages are awarded to compensate for actual
damage and are at the heart of most tortious actions. In Butler v Egg and Egg
Pulp Marketing Board (1966) 114 CLR 185 at 191, it was stated:
The settled principle governing the assessment of compensatory damages, whether in actions of
tort or contract, is that the injured party should receive compensation in a sum which, so far as
money can do, will put that party in the same position as he or she would have been in if the
contract had been performed or the tort had not been committed.

See also Todorovic v Waller (1981) 150 CLR 402 at 412; 37 ALR 481 at 486;
Redding v Lee (1983) 151 CLR 117 at 133; 47 ALR 241 at 252; Johnson v Perez
(1988) 166 CLR 351 at 355, 386; 82 ALR 587 at 611; Haines v Bendall (1991)
172 CLR 60 at 63; 99 ALR 385 at 386.

15.26 In negligence, compensation is the cardinal concept; it is the ‘one

principle that is absolutely fundamental, and which must control all else’:
Skelton v Collins (1966) 115 CLR 94 at 128 per Windeyer J. Linked with this
concept is the rule, described by Lord Reid in Parry v Cleaver [1970] AC 1 at
13 as ‘universal’, that a plaintiff cannot recover more than he or she has lost:
see also Haines v Bendall.
15.27 Compensatory damages may be subdivided further:
special damages — the loss suffered has some precise monetary value,
assessed only up to the date of the verdict and must be capable of
precise arithmetic calculation or estimation. Each item of special
damage must be specially pleaded; and

[page 387]

general damages — assessed ‘at large’: Shearman v Folland [1950] 2 KB

43. By their very nature, general damages are incapable of
mathematical calculation and may be assessed with reference to an
indefinite period.

15.28 Awards of compensatory damages are to place the plaintiff in the

position as if no tort had been committed, insofar as money is able. This is
despite the very obvious difficulties in assessing future consequences and
policy considerations. An example of where policy considerations in
assessment of damages has arisen can be found in the cases concerning
wrongful birth, that is, where children are born after failed sterilisation
procedures.
In Melchior v Cattanach (2001) 217 ALR 640, the plaintiff conceived after a
failed sterilisation procedure and gave birth to a healthy child. There was no
dispute that the plaintiff was entitled to damages for pain and suffering and
loss of amenities due to the pregnancy, but the plaintiff also claimed
economic loss for the cost of rearing the child. The Queensland Court of
Appeal considered the argument that public policy should not allow damages
to be awarded for the birth of a healthy child: at [49]. In awarding damages, it
was reasoned that the damages were not to compensate for the birth of the
child, but to compensate for the ‘additional financial burden that will be
placed on the family through the [defendants’] negligence’: at [53]. The High
Court dismissed the appeal by a majority of 4:3. The majority held that to not
allow damages to be awarded would be a departure from the ordinary
principles of negligence and, therefore, would require strong public policy
arguments: Cattanach v Melchior (2003) 215 CLR 1; 199 ALR 131. The
decision of the High Court has since been overturned by legislation in some
jurisdictions: see Civil Liability Act 2002 (NSW) Pt 11; Civil Liability Act
2003 (Qld) Ch 2 Pt 5.

4 Principles of Assessment of
Compensatory Damages
15.29 In order to achieve the aim of compensatory damages, five
fundamental principles apply to the assessment of compensatory damages at
common law.

Egg-shell Skull Rule

15.30 In an action by a plaintiff to recover damages for physical injuries
caused by an act or omission of the defendant, the defendant must take the
plaintiff as they find them, with all the weaknesses, beliefs, capacities and
attributes: Nader v Urban Transit Authority (1985) 2 NSWLR 501. Once some
damage of the kind is reasonably foreseeable, the fact that the particular
plaintiff suffered to a greater extent, for example because of a thin skull, is
irrelevant, and the plaintiff is entitled to recover for the whole loss.
This rule also applies to damaged property. In McColl v Dionisatos (2002)
Aust Torts Reports ¶81-652, the parties owned properties that were joined at
the rear. The plaintiff claimed that her rear wall was damaged due to the
pressure of water and soil coming from the defendant’s property, thereby
creating a nuisance. The defendant argued that the wall had been
inadequately constructed. Young CJ held that the egg-shell skull rule applied
to both persons and property and, therefore, the fact that if the plaintiff’s wall
had been

[page 388]

constructed properly only minor damage would have been suffered, was no
answer to a claim for the loss of the whole wall. See also Cox v New South
Wales (2007) 71 NSWLR 225 at [150], where Simpson J stated:
The egg shell skull rule, as I understand it, makes a tortfeasor liable for injury caused by his or
her tort, even where that injury is disproportionate (by reason of particular vulnerability in the
plaintiff) to what might ordinarily be expected.

The Indemnity Principle

15.31 The primary purpose of an award of compensatory damages is to
place the plaintiff in the position as if no tort had been committed. In
calculating damages, the primary consideration is the pecuniary sum which
will make good to the suffering party, so far as money can do so, the loss
which that party has suffered at the hands of the tortfeasor: Admiralty
Commissioners v SS Valeria [1922] AC 242.

15.32 The indemnity principle dictates that a plaintiff receives only net,
rather than gross, sums and that advantages flowing to the plaintiff be
brought to account as set-offs. For example, any future economic losses are
discounted to acknowledge that the plaintiff is receiving future amounts as a
lump sum payment and is therefore receiving a benefit they would otherwise
not have received. After all, no one receives payment of all of their income for
their working life before they have earnt it.

Once and for All Rule

15.33 It is an ancient principle that damages for a single cause of action
must be assessed at common law once and for all: Fitter v Veal (1701) 12 Mod
542; 88 ER 1506. Once a plaintiff’s damages have been assessed, they cannot
claim further should their injury cause greater loss than the evidence
suggested at the time of assessment and nor can the defendant seek recovery
of the damages should the plaintiff’s condition improve. In Cartledge v E
Jopling & Sons Ltd [1963] AC 758 at 780; [1963] 1 All ER 341 at 350, Lord
Pearce explained:
In 1701 in Fitter v Veal … the plaintiff, after recovering damages for an assault and battery,
discovered that his injuries were more serious than had been supposed. He sought to bring a
second action for the fresh damage. It was held, however, that he had but one cause of action
which had been extinguished by the judgment in the former case. That principle has never since
been doubted. It has been applied daily in countless actions for damages for personal injuries. In
each case the judge assesses the damages once and for all, with the knowledge that the plaintiff
can get no further damages for the possible traumatic consequences, such as arthritis or
epilepsy, which may occur in the years to come.

There is an exception in the case of continuing torts: Adams v Ascot Iron

Foundry Pty Ltd (1968) 72 SR (NSW) 120.

15.34 An appellate court has power to admit fresh evidence only in an

exceptional case to reopen a previous award: Murphy v Stone-Wallwork
(Charlton) Ltd [1969] 1 WLR 1023. If there has been different damage (for
example, damage to property and personal injury),

[page 389]

separate causes of action will arise and the award of damages in one will not
be a bar to recovery in respect of the other: Brunsden v Humphrey (1884) 14
QBD 141.

15.35 The once and for all rule can work substantial injustice through its
inflexible attitude requiring a single temporal point for assessment. The
damage may, in fact, be lesser or greater over a period of time. Much effort on
both sides goes into proving and contesting the nature, future impact and
quantum of injury. It is an estimation only with the prospect of over- or
under-compensation. In Mundy v Government Insurance Office (NSW)
(NSWSC, Spender JA, 5 June 1995, unreported), a case requiring the
assessment of damages for a three-and-a-half-year-old boy suffering severe
spastic quadriplegia and intellectual deficit due to a motor accident, Spender
JA commented (at 2):
Looking to the past is one thing; this causes no great difficulties. Looking to the future is an
entirely different proposition. This case is a striking example of the need to reform the archaic
laws which require the Court to determine now and finally the money sums which are to be
awarded as compensation for an assumed loss of earning capacity and to provide an adequate
sum for future care.

Lump Sum Rule

15.36 Damages must be awarded as a lump sum and it is not permissible
at common law, without statutory authorisation, to order the defendant to
pay periodic sums such as an annuity until death: Fournier v Canadian
National Railway Co [1927] AC 167; Todorovic v Waller (1981) 150 CLR 402
at 412; 37 ALR 481 at 486. As noted by the court in Todorovic v Waller, a
court has no duty to ensure that a plaintiff utilises the award of damages in an
appropriate manner.

Structured settlements
15.37 Negligence reforms have introduced the choice of having a
structured settlement in place of a lump sum award in cases of personal
injury. For example, s 8 of the Civil Liability Act 2002 (Tas) provides that,
upon the application of the parties to a claim for damages for personal injury
or death, a court may make an order approving a structured settlement. See
also Civil Liability Act 2002 (NSW) Pt 2 Div 7; Personal Injuries (Liabilities
and Damages) Act 2003 (NT) Pt 4 Div 6; Personal Injuries (Civil Claims) Act
2003 (NT) s 12; Civil Liability Act 2003 (Qld) Ch 3 Pt 4; Wrongs Act 1958
(Vic) Pt VC; Civil Liability Act 2002 (WA) Pt 2 Div 4.
‘Structured settlement’ is defined in the section as an agreement that
provides for the payment of the award of damages in periodic payments. The
other jurisdictions have similar provisions: Civil Law (Wrongs) Act 2002
(ACT) s 45; Civil Liability Act 2002 (NSW) s 24; Personal Injuries (Liability
and Damages) Act 2003 (NT) s 32; Civil Liability Act 2003 (Qld) s 65;
Supreme Court Act 1935 (SA) s 30BA; Wrongs Act 1958 (Vic) s 28N.
Other compensation schemes allowing periodic payments are the motor
vehicle compensation Acts (Motor Accidents Compensation Act 1999 (NSW)
s 81) and workers compensation schemes: Workers Compensation Act 1987
(NSW) s 151Q; Workers’ Compensation and Rehabilitation Act 2003 (Qld)
Ch 5, Pt 9, Div 4. In South

[page 390]

Australia, final assessment of damages in all actions can be postponed to

permit assessment of a continuing disability and periodic payment ordered in
the interim: Supreme Court Act 1935 (SA) s 30BA; and see Walker v Tugend
(1981) 28 SASR 194. See also Civil Liability Act 2002 (NSW) s 82 and Zraika
(by his tutor Zraika) v Walsh (No 2) (2014) 66 MVR 588.

15.38 Structured settlements mean that the plaintiff need not manage the
lump sum of compensation (management fees usually being recoverable in
limited circumstances, see 15.131) and a more secure source of income is
available to the plaintiff for a longer term. The Federal Government enacted
the Taxation Laws Amendment (Structured Settlements and Structured
Orders) Act 2002 (Cth), introducing tax advantages for structured
settlements to encourage parties to choose this option.
Duty to Mitigate
15.39 A plaintiff has an obligation to mitigate damage and may be denied
compensation for a failure to fulfil this obligation, at least to the extent of
damages which exceed the point where mitigation would have prevented
further harm. The test is an objective one: what steps a reasonable plaintiff
would take to minimise their loss: British Westinghouse Electric & Mfg Co Ltd
v Underground Electric Railways Co of London Ltd [1912] AC 673. The
burden is upon the defendant to show that a plaintiff has failed to mitigate:
Munce v Vinidex [1974] 2 NSWLR 235; Dininis v Kaehne [1982] 29 SASR
118; Lorca v Holts Corrosion Control Pty Ltd [1981] Qd R 261.

15.40 In Boyd v State Government Insurance Office (Qld) [1978] Qd R 195,

a blood transfusion was refused by a youth out of respect for his parents’
belief that it was contrary to God’s law. This was held to be an unreasonable
refusal to mitigate: see also Walker-Flynn v Princeton Motors Pty Ltd [1960]
SR (NSW) 488. A plaintiff is allowed reasonable time to consider the position
and weigh the risks of action in mitigation: Hisgrove v Hoffman (1981) 29
SASR 1. Although the test is objective, factors personal to the plaintiff, when
considering reasonableness, are relevant: Fazlic v Milingimbi Community Inc
(1982) 150 CLR 345; 38 ALR 424.

15.41 Policy considerations come into play when considering whether

action was required for mitigation. For example, in CES v Superclinics
(Australia) Pty Ltd (1995) 38 NSWLR 47, the New South Wales Court of
Appeal considered whether, in an action for damages for wrongful birth (in
this case, the birth of a child after pregnancy was diagnosed when it was too
late to obtain an abortion), a parent who did not abort (if it was safe to do so)
or give up the child for adoption failed to mitigate their loss when claiming
for the economic costs of raising the child. Meagher J (in dissent, holding that
no damages could be awarded for the cost of rearing a child) stated (at 87):
The law ordains that a plaintiff must mitigate her damages. In the present context, why does that
 not require the mother to put the child of which she vociferously complains out to adoption?
Why should the law treat seriously her claim for the recovery of expenses which she does not
need to incur?

[page 391]

In Cattanach v Melchior (2003) 215 CLR 1; 199 ALR 131, where the High
Court held that damages were recoverable for the cost of rearing a child after
a failed sterilisation procedure, the issue of mitigation was not argued. See
also McFarlane v Tayside Health Board [2000] 2 AC 59; [1999] 4 All ER 961.

15.42 Any additional loss or expense incurred by the plaintiff in

attempting to minimise the damage by reasonable means in mitigation may
be recovered by that party as part of the compensation for the tortious act:
The Oropesa [1943] P 32. In Simonius Vischer & Co v Holt & Thompson
[1979] 2 NSWLR 322 at 356, Samuels JA stated:
… the principle is that stated in McGregor on Damages, 13th ed, p 167, par 237, namely that
recovery is allowed “for losses and expenses reasonably incurred in mitigation even although the
resulting damage is in the event greater than it would have been had the mitigating steps not
been taken”. … [I]n Lloyds and Scottish Finance Ltd v Modern Cars & Caravans (Kingston) Ltd
[[1966] 1 QB 764 at 782] … his Lordship said: “… it is well established that a plaintiff may
recover expenses incurred in an effort to mitigate the damage resulting from a defendant’s
wrongdoing”. …

It would seem to follow that, once the plaintiffs’ conduct is found to have been reasonable, the
defendants are bound to make good the loss thereby sustained. [footnotes omitted]

15.43 Where a party unreasonably refuses to mitigate, the defendant will

be liable only for so much damage as would have resulted had mitigation
taken place and not for any additional damage flowing from the time of
failure to mitigate.

15.44 In Queensland, in respect of claims for personal injury, s 53 of the

Civil Liability Act 2003 allows a defendant to give written notice to a plaintiff
suggesting specific action that a plaintiff should take to mitigate their
damages. If the court finds that the plaintiff has failed to mitigate by not
following the defendant’s suggestions that were reasonable, the plaintiff’s
damages are reduced.

5 Property Damage
15.45 The assessment of damages to compensate for property damage is
relatively simpler than that for personal injury, since the estimation of the loss
is ordinarily more certain. Restitution for the loss of value of property usually
represents the difference in the value of the property before and after the
interference. Normally, this will amount to:
the cost of repair in the case of partial destruction (Murphy v Brown
(1985) 1 NSWLR 131; Pargiter v Alexander (1995) 5 Tas R 158); or
the diminution in value in the case of partial destruction (Davidson v J
S Gilbert Fabrications Pty Ltd [1986] 1 Qd R 1); or
total replacement costs in the case of total deprivation or destruction:
Wheeler v Riverside Coal Transport Co Pty Ltd [1964] Qd R 113.
Loss that the plaintiff suffers as a consequence of the damage to the
property may also be compensated.

[page 392]

Cost of Repair and Diminished Value

15.46 Depending upon the circumstances, a court may award
compensatory damages for a tort affecting land in the form of either an
amount representing the reduced value of the property or the cost of
reinstatement. If the plaintiff seeks the greater amount as compensation, the
court must be convinced that it is the appropriate measure and reasonable in
the circumstances: Hansen v Gloucester Developments Pty Ltd [1992] 1 Qd R
14; Evans v Balog; Evans v Progress & Securities Pty Ltd [1976] 1 NSWLR 36 at
39; Jones v Shire of Perth [1970] WAR 56; Pargiter v Alexander (1995) Aust
Torts Reports ¶81-349. In Winky Pop Pty Ltd v Mobil Refining Australia Pty
Ltd [2015] VSC 348 at [182], it was stated:
Courts will start with what the plaintiff has asked for, and then consider whether that measure of
damages is fair and reasonable in light of the injury suffered, the difference between the
diminution in value on the one hand and reinstatement costs on the other, and any special value
in the land.

15.47 If the plaintiff has received a benefit from the damage to their
property, for example a derelict building destroyed that was marked for
demolition, the court may take that fact into account.
In Gagner Pty Ltd t/as Indochine Café v Canturi Corporation Pty Ltd (2009)
262 ALR 691, the respondent’s business premises were damaged by flooding
caused by the appellant. The flooding affected approximately 10 per cent of
the respondent’s floor area, but the respondent took the opportunity to close
the business for 29 days and completely refurbish the business at a substantial
cost. The trial judge awarded damages to reflect the cost of rectifying the
premises to the condition as close as possible before the flood and the loss of
profits for 10 days. On appeal it was argued that the appellant had not
suffered any loss because of the complete refurbishment, and the award of
damages was in the circumstances a claim for betterment. Campbell JA
discussed cases that measured damage for tortious damage to property and
concluded (at [105]–[106]):
What counts as making good the damage, for the purpose of assessing damages for torts, needs
to be understood bearing in mind what the purpose is for which one is asking what counts as
“making good”. That purpose is ascertaining what the work is that is necessary to undo the
consequences of the tort having been committed. The only interest of the defendant that bears
upon the question of whether rectification work is reasonable is a financial one, sometimes
expressed in the principle that a plaintiff must mitigate his damage. …

The cost of making good is merely one way of putting a dollar figure on the damage that the
plaintiff has suffered, for the purpose of carrying through the compensatory principle. There are
circumstances, of which the present is one, when the fact that money has not been spent on the
 precise items that would need to be acquired to restore property to its pre-damage condition
does not prevent the cost of acquiring those items being the appropriate way of giving effect to
the compensatory principle. Similarly, in circumstances where profits have been lost as a result
of the shop being closed during the time it took to undertake the (loose sense) rectification that
was carried out, and a lesser time would have involved in effecting a (precise sense) rectification,
the appropriate quantum for loss of profits is the profits that would have been lost during the
lesser of those times.

[page 393]

The court held that the fact that the respondent had taken the opportunity
to refurbish the premises did not mean that the premises had not been
damaged due to the negligence of the appellant — the flooding was one of the
causes of the refurbishment. Campbell JA stated (at [111]):
To the extent to which there were contributing causes besides the water damage, it was the
judge’s task to assess the compensation that would make good those consequences properly
attributable to the flooding. This she did by allowing the amount that a precise rectification of
the water damage alone would have cost, and leaving the respondent to bear any amount it had
spent in excess of that.

Further, there was no need to take into account any benefits gained by the
respondent through the refurbishment, as in Hoad v Scone Motors Pty Ltd
[1977] 1 NSWLR 88 (refurbishment added value to business about to close
and be sold), as there was no evidence that the business profits had increased
or that the shop was ‘in any other way more valuable than it would have been
if the damage had never occurred’: at [127].

Replacement Costs
15.48 If the property has been destroyed or the plaintiff has been
permanently deprived of possession, then the damages will be assessed as the
cost of replacement, that is, the market value of the property. The underlying
indemnity principle requires evidence of any intended use of the property by
the plaintiff and any consequential betterment to the plaintiff may be set off:
Hyder Consulting (Australia) Pty Ltd v Wilh Wilhelsmen Agency Pty Ltd
(2002) 18 BCL 122; [2001] NSWCA 313.

Consequential Losses
15.49 If the property is profit-making, the plaintiff is entitled to the
consequential loss of profits or cost of hiring a substitute: Liesbosch, Dredger v
Edison SS (Owners) [1933] AC 449; The Argentine (1889) 14 App Cas 519;
Newmans Coach Lines Ltd v Robertshawe [1984] 1 NZLR 53; Mitsui OSK
Lines Ltd v The Ship ‘Mineral Transporter’ [1983] 2 NSWLR 564; Glenmont
Investments Pty Ltd v O’Loughlin (2000) 79 SASR 185; Winky Pop Pty Ltd v
Mobil Refining Australia Pty Ltd [2015] VSC 348 at [145]. If a consequence of
the damage to the property is the loss of the chance of a commercial
opportunity, damages may be awarded if the chance was substantial and not
speculative.

15.50 The loss of the use of funds and the need to borrow to pay debts may
also be compensable: Boden v Roy Gordon & Gordon [1985] 1 Qd R 482. It is
possible to compensate for loss of use of non-profit earning chattel or land:
Millar v Candy (1981) 38 ALR 299.

15.51 In Hungerfords v Walker (1989) 171 CLR 125; 84 ALR 119, the High
Court of Australia swept away a longstanding rule when it held by majority
that a court, when awarding damages at common law for negligence (or
breach of contract), can include a sum for opportunity cost in the form of an
award for damages by way of interest for the loss of the use of money which
the plaintiff paid, or lost the use of, as a direct result of

[page 394]

the defendant’s negligence or breach of contract. In the words of Mason CJ

and Wilson J (at CLR 143; ALR 128):
If a justification exists for the difference in treatment, it must have its genesis in a policy that
encourages recovery of expense actually incurred and discourages or denies recovery of
opportunity cost. Yet it is not easy to see any cogent reason for the adoption of such a policy; the
award of compensation for opportunity cost would not expose the courts to insuperable
problems in fact-finding.

Indeed, such a policy would be at odds with the fundamental principle that
a plaintiff is entitled to restitutio in integrum. According to that principle, the
plaintiff is entitled to full compensation for the loss he or she sustained in
consequence of the defendant’s wrong, subject to the rules as to remoteness of
damage and to the plaintiff’s duty to mitigate. In principle, the plaintiff
should be awarded the compensation which would restore him or her to the
position he or she would have been it but for the defendant’s breach of
contract or negligence. In Broken Hill City Council v Tiziani (1997) 93
LGERA 113, for example, the plaintiffs were awarded a sum to compensate
for the emotional distress they suffered due to the flooding of their home
which was caused by the manner in which the defendant designed and
constructed a road.

15.52 Judged from a commercial viewpoint, the plaintiff sustains an

economic loss if his or her damages are not paid promptly, just as a loss is
sustained when a debt is not paid on the due date. The loss may arise in the
form of the investment cost of being deprived of money which could have
been invested at interest or used to reduce an existing indebtedness. The loss
may also arise in the form of the borrowing cost, that is, interest payable on
borrowed money or interest forgone because an existing investment is
realised or reduced: Commonwealth v Chessell (1991) 101 ALR 182.

6 Damages for Personal Injuries

15.53 An injured plaintiff is entitled to be compensated for all losses,
economic and non-economic, that are a consequence of the defendant’s
wrongdoing. However, this is not always an easy task, and as pointed out in
Wei Fan v South Eastern Sydney Local Health District (No 2) [2015] NSWSC
1235 at [308]:
Damages are awarded as compensation for the damage suffered. It is accepted, and clearly
understood, that it is impossible to use money to restore to a condition of physical wholeness a
person who has suffered great personal injury. Therefore, all the law can do is to restore the
person who has suffered so far as money can do.

Although the principles governing assessment of common law damages

apply to personal injury cases, there has been much statutory modification.
The year 2001 saw the beginnings of increases in public liability insurance
premiums said to be partly in response to the large awards of damages for
personal injuries. To address the problem of unaffordable insurance, the
Australian governments implemented legislation, modelled on
recommendations of

[page 395]

the Ipp Report,3 which placed substantial restrictions on the common law
principles of assessment of damages. The relevant legislation for each state
and territory will be referred to under the specific head of damage.

15.54 In CSR Ltd v Eddy (2005) 226 CLR 1; 222 ALR 1 at [28]–[31], the
High Court summarised the full spectrum of losses an injured plaintiff may
claim:
A plaintiff who has suffered negligently caused personal injury is traditionally seen as able to
recover three types of loss.

The first covers non-pecuniary losses such as pain and suffering, disfigurement, loss of limbs or
organs, loss of the senses — sight, taste, hearing, smell and touch; and loss of the capacity to
engage in hobbies, sport, work, marriage and child-bearing. Damages can be recovered in
relation to these losses even if no actual financial loss is caused and even if the damage caused by
them cannot be measured in money.
 The second type of loss is loss of earning capacity both before the trial and after it. Although the
damages recoverable in relation to reduced future income are damages for loss of earning
capacity, not damages for loss of earnings simpliciter, those damages are awardable only to the
extent that the loss has been or may be productive of financial loss [Graham v Baker (1961) 106
CLR 340 at 347 per Dixon CJ, Kitto and Taylor JJ; Medlin v State Government Insurance
Commission (1995) 182 CLR 1 at 5, 18 per Deane, Dawson, Toohey and Gaudron JJ and
McHugh J respectively]. Hence ‘the valuation of the loss of earning capacity involves the
consideration of what moneys could have been produced by the exercise of the [plaintiff’s]
former earning capacity’ [Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 at 658
per Barwick CJ].

The third type of recoverable loss is actual financial loss, for example, ambulance charges;
charges for medical, hospital and professional nursing services; travel and accommodation
expenses incurred in obtaining those services; the costs of rehabilitation needs, special clothing
and special equipment; the costs of modifying houses; the costs of funds management; and the
costs of professionally supplied home maintenance services. It is not necessary for the costs
actually to have been incurred by the time of the trial, but it is necessary that they will be
incurred.

To summarise, an injured plaintiff may be able to claim for:

past and future hospital and medical expenses;
gratuitous services;
past and future loss of earning capacity; and
past and future non-pecuniary losses.
These components of a plaintiff’s claim are referred to as the heads of
damages.

[page 396]

Compensatory Damages
15.55 The compensatory damages awarded for personal injury may be
divided into two categories — special damages and general damages: see
15.27. The classification is illustrated by the diagram below:
Special damages
15.56 Special damages are awarded in respect of actual losses incurred,
from the date of the incident up to the date of verdict, which are capable of
precise calculation or estimation: Paff v Speed (1961) 105 CLR 549. Such
losses are pecuniary as they may be translated into monetary terms: McRae v
Commonwealth Disposals Commission (1951) 84 CLR 377; [1951] ALR 771.
Special damages may be claimed for the following pecuniary losses:
past hospital and medical expenses;
past loss of earning capacity; and
other monetary claims arising from the injury up until judgment or
settlement.

15.57 The items claimed as special damages must be considered

reasonable as required by the plaintiff’s duty to mitigate their loss. Usually the
special damages can be proven, for example by invoices, and are agreed upon
between the parties.

[page 397]

General damages
15.58 General damages are not capable of precise arithmetical calculation
or estimation, and the standard tests in placing a monetary value on such
damages are less certain than those used in calculating special damages: Paff v
Speed (1961) 105 CLR 549. The heads of damage classified as general damages
may include a consideration of future (that is, after the judgment) as well as
past and present impairment, and may involve pecuniary and non-pecuniary
items.

15.59 The pecuniary general damages compensate a plaintiff for:

future hospital and medical expenses;
gratuitous services; and
any future loss of earning capacity.

15.60 The non-pecuniary general damages (sometimes referred to as the

‘non-economic loss’) are assessed according to the civil liability legislation
and compensate a plaintiff for:
pain and suffering;
loss of amenities (enjoyment of life);
loss of expectation of life; and
disfigurement.

Hospital and Medical Expenses

15.61 A plaintiff may claim the reasonable and necessary expenses arising
from hospital and medical treatments due to their injuries: Sharman v Evans
(1977) 138 CLR 563; 13 ALR 57. This head of damage may include such items
as pharmaceutical expenses, fertility program costs, cost of future medical
aids and equipment, and future hospital costs, for example future operations
or therapies.
In respect of past hospital and medical expenses, a plaintiff need not
actually have disbursed the fees, provided they are due and payable: Blundell v
Musgrave (1956) 96 CLR 73. Nor is it necessary that the plaintiff be under any
legal liability to reimburse some other party who has paid such expenses:
Donnelly v Joyce [1974] QB 454; Renner v Orchard [1967] QWN 3. An act of
benevolence by a third party cannot be relied upon by a defendant to reduce
the damages payable to the plaintiff: Kars v Kars (1996) 187 CLR 354; 141
ALR 37.

Assessment period
15.62 Past The expenses that arise between the date of injury and the date
of judgment are special damages and are usually agreed upon by the parties as
they are evidenced by invoices.

15.63 Future The assessment period for future hospital and medical
expenses (pecuniary general damages) is from the date of judgment until the
date of expected recovery or until the date of the plaintiff’s expected death if
they are permanently injured: Sharman v Evans (1977) 138 CLR 563; 13 ALR
57.

[page 398]

Reasonable and necessary

15.64 To be entitled to compensation for hospital and medical expenses,
the expenses must be reasonable and necessary due to the plaintiff’s injuries:
Sharman v Evans (1977) 138 CLR 563; 13 ALR 57. See, for example, Laut &
Loughlin v White Feather Main Reefs (1905) 7 WALR 203, where the cost of
an operation required because medical advice was not followed was not
allowed.

15.65 The cost of the treatment itself must also be reasonable. For
example, in Kostik v Giannakopoulos (1989) Aust Torts Reports ¶80-274 on
appeal, the cost claimed for physiotherapy was challenged as the charges were
over $2000 more than the fees recommended by the Australian
Physiotherapists Association. King CJ stated (at 6):
A plaintiff is entitled to recover only the reasonable cost of the treatment which he requires. A
reasonable amount of latitude may properly be allowed in choosing professional advisers and
providers of treatment and the cost of treatment need not be regarded as unreasonable simply
because the treatment might have been obtained more cheaply elsewhere, Wyld v Bertram
[1970] SASR 1. A plaintiff cannot recover, however, exorbitant charges made by those from
whom he has obtained treatment. The onus is on the plaintiff to establish the reasonableness of
the charges which he seeks to recover. In the generality of cases, of course, where no issue is
taken with the reasonableness of the charges claimed, no evidence on this point is necessary.
Where the reasonableness of the charges is challenged, it is necessary for the plaintiff to establish
their reasonableness by evidence.

In Lipovac v Hamilton Holdings Pty Ltd (1997) 136 FLR 400, the cost of a
visit to Lourdes was held not to be reasonably necessary for the plaintiff’s
condition. See also Neal v CSR Ltd (1990) Aust Torts Reports ¶81-052 and
Perry v Australian Rail Track Corporation Ltd (2013) 64 MVR 121.
Fees paid to doctors to examine with a view to giving evidence in litigation,
but not for treating the plaintiff, may not be reasonable: Laut & Loughlin v
White Feather Main Reefs (1905) 7 WALR 203. Occasionally, authorities
suggest that a plaintiff should use free facilities, if available, in order to
mitigate the loss: Taccone v Electric Power Transmission Pty Ltd [1962] Qd R
545.

15.66 In cases of serious injury, a court must determine the

appropriateness of institutional versus home health care and award damages
on the appropriate basis: Sharman v Evans (1977) 138 CLR 563; 13 ALR 57,
but compare Government Insurance Office (NSW) v Mackie (1990) Aust Torts
Reports ¶81-053; Burford v Allen (1993) 60 SASR 428. The cost of home care
is considerably higher in comparison to institutional care. Therefore, as the
plaintiff has a duty to mitigate their damage, to recover the cost of the more
expensive home care, the plaintiff must prove that, due to their condition, it is
reasonably necessary that they be nursed at home: Sharman v Evans (1977)
138 CLR 563; 13 ALR 57. For example, in Rosecrance v Rosecrance (1995) 105
NTR 1, the plaintiff suffered severe injuries in a motor vehicle accident. The
plaintiff claimed for the cost of at-home nursing care but the defendant
argued that the plaintiff’s future care should be calculated on the basis of
being in a skilled nursing facility. The court noted that there was a substantial
difference between the cost of at-home and institutional care, but observed
that there was a trend in medical opinion and

[page 399]

community attitudes to treat institutional care as a last resort: at 25. The court
held that the evidence favoured the conclusion that the plaintiff’s health
would benefit from being at home rather than in an institution.

15.67 Evidence of the plaintiff’s future medical needs is important to allow

the court to assess the probability of specific events occurring. For example,
the possibility of future operations or treatment can be compensated even
though it may not be definite that the plaintiff will require the operation or
treatment. In assessing such future events, the court must ‘assess the degree of
probability that an event would occur’: Malec v JC Hutton Pty Ltd (1990) 169
CLR 638 at 639. In Malec v JC Hutton Pty Ltd, Deane, Gaudron and McHugh
JJ stated (at 643):
… in the case of an event which it is alleged would or would not have occurred, or might not yet
occur, the approach of the court is different. The future may be predicted and the hypothetical
may be conjectured. But questions as to the future or hypothetical effect of physical injury or
degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to
 take account of future or hypothetical events in assessing damages, it can only do it in terms of
the degree of probability of those events occurring. … unless the chance is so low as to be
regarded as speculative — say less than 1 per cent — or as high as to be practically certain — say
over 99 per cent — the court will take that chance into account when assessing the damages.
Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction that
has a 51 per cent probability of occurring, but to ignore altogether a prediction that has a 49 per
cent probability of occurring. Thus, the court assesses the degree of probability that an event
would have occurred, or might occur, and adjusts its award of damages to reflect the degree of
probability.

Loss of Earning Capacity

15.68 If a plaintiff’s earning capacity is affected by their injuries and this
leads to financial loss, this will be compensated: Graham v Baker (1961) 106
CLR 340. In Medlin v State Government Insurance Commission (1995) 182
CLR 1 at 16, the difference between earning capacity and loss of earnings was
explained:
In Australia, a plaintiff is compensated for loss of earning capacity, not loss of earnings. In
practice, there is usually little difference in result irrespective of whether the damages are
assessed by reference to loss of earning capacity or by reference to loss of earnings. That is
because ‘an injured plaintiff recovers not merely because his earning capacity has been
diminished but because the diminution of his earning capacity is or may be productive of
financial loss’ [Graham v Baker (1961) 106 CLR 340 at 347]. Nevertheless, there is a difference
between the two approaches, and the loss of earning capacity principle more accurately
compensates a plaintiff for the effect of an accident on the plaintiff’s ability to earn income.
Earning capacity is an intangible asset. Its value depends on what it is capable of producing.
Earnings are evidence of the value of earning capacity but they are not synonymous with its
value. When loss of earnings rather than loss of capacity to earn is the criterion, the natural
tendency is to compare the plaintiff’s pre-accident and post-accident earnings. This sometimes
means that no attention is paid to that part of the plaintiff’s capacity to earn that was not
exploited before the accident. Further, there is a tendency to assume that if pre-accident and
post-accident incomes are comparable, no loss has occurred.

[page 400]

See also O’Brien v McKean (1968) 118 CLR 540; Atlas Tiles Ltd v Briers
(1978) 144 CLR 202; 21 ALR 129.
15.69 When assessing a plaintiff’s loss of earning capacity, the court
considers the plaintiff’s earning capacity before injury and evaluates the
plaintiff’s residual earning capacity and the possibility of them being able to
exploit that capacity for financial gain. Evidence of past earnings, for example
through income tax records, is relevant, especially if the plaintiff was
continually employed before being injured: see Paff v Speed (1961) 105 CLR
549 at 566; New South Wales v Moss (2000) 54 NSWLR 536 at [71].

15.70 However, in some cases such evidence does not give a realistic
indication of the plaintiff’s true position. For example, in Husher v Husher
(1999) 197 CLR 138; 165 ALR 384, the husband and wife were in a
partnership that could be terminated at will. The income earned by the
husband was paid equally to him and his wife through the partnership for tax
advantages. The husband was injured and argued that his loss of earning
capacity should be assessed on the whole of the income, not just the 50 per
cent he actually received. The High Court held that the evidence was that the
husband had control over the capacity to earn and as the partnership was at
will, effectively the husband controlled the whole of the income. Therefore, all
of the partnership income was to be assessed as the lost income. See also
Smith v Zhong (2015) 73 MVR 64.

15.71 If a plaintiff provides evidence that, had they not been injured, their
earnings in the future would have increased, for example through promotion,
this may be taken into account by the court on proof of the probability: Malec
v JC Hutton Pty Ltd (1990) 169 CLR 638.
An example of a court taking into account future earnings that were
substantially higher than what the plaintiff was earning at the time of being
injured is Norris v Blake (No 2) (1997) 41 NSWLR 49. The plaintiff was
seriously injured when working on the set of a movie and would never be able
to work again. He had starred in Australian television series and the evidence
was that he was going to have a successful acting career overseas as well. The
court heard evidence of the incomes of other Australian actors according to
their success and awarded the plaintiff $7,733,713 for loss of future economic
capacity, based upon the premise that the plaintiff was an actor with a bright
and lucrative career in front of him at the time of the accident.

15.72 Not every plaintiff has a record of continual employment, for

example the plaintiff may be unemployed at the time of injury or their record
of employment may be erratic or varied. See, for example, Aircraft
Technicians of Australia Pty Ltd v St Clair [2011] QCA 188 (plaintiff before
his serious injury was a master butcher, worker on an oil rig, owner of a
helicopter and ground mustering business, and after being injured attempted
ostrich farming before moving to the United States and becoming a successful
sculptor).

15.73 In the case of a permanently injured child, the assessment of loss of

earning capacity is more an ‘estimation of possibilities, rather than proof of
probabilities’: New South Wales v Moss (2000) 54 NSWLR 536 at [71]. In that
case, Hayden JA stated at [84]:
Strictly speaking it would be impossible to prove that the child would have had an earning
capacity as an adult or would have exploited it. But it is conventional to rely on the occupations,

[page 401]

attitudes to life and work, histories of parents and other relatives: Kalo v Bristol Omnibus Co Ltd
(1975) 1 WLR 1054; Gowling v Mercantile Mutual Insurance Co Ltd (1980) 24 SASR 321; Bullock
v Miller (1987) Aust Torts Reports 80-128; Burford v Allan (1992) 60 SASR 428.

See Simpson (by her tutor Simpson) v Diamond [2001] NSWSC 925
(plaintiff injured at birth, court held that evidence did not support the claim
that the plaintiff would have undertaken tertiary studies and pursued a career
in law).

15.74 The civil liability legislation in New South Wales and Queensland
provides for assessment of loss of earning capacity when that loss cannot be
calculated precisely by reference to a weekly loss. In such circumstances, a
court may only award damages if satisfied that the loss has been suffered, or
will be suffered, by the plaintiff and it must state the assumptions upon which
the award is based: see Civil Liability Act 2002 (NSW) s 13; Civil Liability Act
2003 (Qld) s 55.

15.75 A person capable of earning, who chooses to remain unemployed or

underemployed, may be prevented from recovering substantial damages:
Thomas v Iselin [1972] QWN 15. See Ahmedi v Ahmedi (1991) 23 NSWLR
288 at 302 (past loss of earnings was due to plaintiff seeking work that was
‘unavailable and unreasonably imposed a limitation on the types of
employment she would undertake’ and not due to any impairment to her
capacity to work).

15.76 Following Medlin v State Government Insurance Commission (1995)

127 ALR 180, damages for loss of earning capacity may extend to those
associated with early retirement if early retirement was not unreasonable and
the reason for it was the result of injuries caused by the defendant, because
the financial loss would then be causally related to the defendant’s negligence.
See also Zurich Australia Insurance Ltd v Rourmanos (2013) 65 MVR 561
(respondent’s injuries were the cause of him ceasing business).

Assessment period
15.77 Past Past loss of earning capacity is classified as special damages and
the period of assessment is from the date of injury to the date of judgment.

15.78 Future Future loss of earning capacity (pecuniary general damages)

is assessed from the date of judgment to the pre-accident expected date of
retirement, if there is permanent impairment, or the date when the plaintiff
will be able to exploit their full capacity to work again. Therefore, the court
must take into account the likely duration of the plaintiff’s disability and the
probable duration of the plaintiff’s remaining working life, in terms of pre-
and post-accident.

15.79 This period of assessment may be reduced or extended upon the

evidence of the particular plaintiff. For example, the plaintiff may have a pre-
existing medical condition that meant they would not have been able to work
until retirement age, or they may have intended to work beyond the age of
retirement: Ascic v Westel Co-operative Ltd (1992) Aust Torts Reports ¶81-
159.

15.80 If, due to the defendant’s negligence, the plaintiff’s life expectancy is
shortened to such an extent that the medical evidence is that the plaintiff is
likely to die at an age when they would have still been earning, this is taken
into account by the court. Damages are still awarded for this period, referred
to as the ‘lost years’ component (post-accident age of

[page 402]

death to pre-accident date of retirement), but are discounted heavily. The loss
of earning capacity for the period of the ‘lost years’ has the probable living
expenses of the plaintiff deducted: Skelton v Collins (1966) 115 CLR 94 at 121;
Sharman v Evans (1977) 138 CLR 563 at 577; 13 ALR 57 at 71.

Legislative restrictions
15.81 All Australian jurisdictions have imposed restrictions upon the
awards for loss of earning capacity. Except for South Australia and Tasmania,
all have capped the damages for loss of future earning capacity at three times
the average weekly earnings: Civil Law (Wrongs) Act 2002 (ACT) s 98; Civil
Liability Act 2002 (NSW) s 12; Personal Injuries (Liability 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; Civil Liability Act 2003 (WA) s 11.
In South Australia, damages for loss of earning capacity may not exceed the
prescribed maximum, dependent upon the date of the accident: Civil Liability
Act 1935 (SA) ss 3 and 54. Statistics establish that only 1.4 per cent of
employees earn above three times the average weekly earnings.4 Therefore,
such limitations will rarely affect an injured plaintiff. The caps set on the
future loss of earning capacity are designed to encourage high-income earners
to insure against such loss.

15.82 Some of the legislation also restricts the amount of damages that
may be awarded for the loss of employer superannuation contributions: Civil
Liability Act 2002 (NSW) s 15C; Civil Liability Act 2003 (Qld) s 56; Civil
Liability Act 1935 (SA) s 56A (motor vehicle accidents); Civil Liability Act
2002 (Tas) s 25.

Indemnity principle
15.83 Overlap The heads of damage in claims for personal injury overlap
and impinge upon one another, and there is a risk of duplication if the
separate amounts are added up in a mathematical way, like a balance sheet:
Teubner v Humble (1962) 108 CLR 491 at 505 per Windeyer J; Bresatz v
Przibilla (1962) 108 CLR 541 at 543. They are not always so distinct that
separate sums can be put on them: Thatcher v Charles (1961) 104 CLR 57 at
75.

15.84 The loss of earning capacity head of damage may overlap with
hospital and medical damages. The indemnity principle requires that such
overlaps be taken into account. For example, the fact that the plaintiff is
hospitalised and receives food and board in the hospital results in a saving of
the money that would otherwise have been spent on sustenance: Skelton v
Collins (1966) 115 CLR 94 at 106; Sharman v Evans (1977) 138 CLR 563 at
576; 13 ALR 57 at 68. If the plaintiff receives compensation for the cost of the
hospital stay and also for loss of earnings during that period, they are being
over-compensated.
15.85 Loss of earnings is calculated net of tax The amount awarded for
lost earning capacity is calculated as a net amount, that is, income tax that
would have been paid on the

[page 403]

gross amount is deducted: British Transport Commission v Gourley [1956] AC

185; Cullen v Trappell (1980) 146 CLR 1; 29 ALR 1. This includes a deduction
for the Medicare levy as it is regarded as a tax.
Queensland and Victoria have legislated that notional income tax is taken
into account: Civil Proceedings Act 2011 (Qld) s 60; Wrongs Act 1958 (Vic) s
28A. As for the other jurisdictions, the High Court decision of Cullen v
Trappell (1980) 146 CLR 1; 29 ALR 1 is followed, requiring that a deduction
representing income tax must be made.

15.86 Allowance for contingencies or vicissitudes It is normal

throughout the earning life of a person that there are periods in which they
will not be earning a wage, for example industrial disputes or illness. To take
into account such non-earning contingencies in a general way, a court
deducts a percentage or some amount from the figure arrived at for loss of
future earning capacity. The allowance for contingencies is based on fact and
in Villasevil v Pickering (2001) 24 WAR 167 at [38] it was noted, ‘[t]he
discount for ordinary contingencies is rarely more than 15 per cent and
usually between 5 and 10 per cent’. See also Gessey v Morrison (1995) 23 MVR
103, where the New South Wales Court of Appeal held that a reduction of 5
per cent was unusually low but not beyond the range of proper discretionary
judgments.

15.87 The High Court in Wynn v New South Wales Insurance Ministerial
Corporation (1995) 184 CLR 485 at 497; 133 ALR 154 at 161 (per Dawson,
Toohey, Gaudron and Gummow JJ) made the following pronouncements on
contingencies or ‘vicissitudes’:
It is necessary to say something as to contingencies or “vicissitudes”. Calculation of future
economic loss must take account of the various possibilities which might otherwise have
affected earning capacity. The principle and the relevant considerations were identified by
Barwick CJ in Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 at 659 as follows:
Ill health, unemployment, road or rail accidents, wars, changes in industrial emphasis, so
that industries move their location, or are superseded by new and different techniques,
the onset and effect of automation and the mere daily vicissitudes of life are not
adequately reflected by merely — and blindly — taking some percentage reduction of a
sum which ignores them.

15.88 In Wynn v New South Wales Insurance Ministerial Corporation

(1995) 184 CLR 485; 133 ALR 154, the Australian High Court had to consider
the appropriate treatment of a deduction from lost earnings in the future of a
sum to cover the cost of care for any future children and household help
expenses. The appellant was 30 years old when injured and was working in a
senior managerial position, which she subsequently had to abandon. In a
joint judgment of Dawson, Toohey, Gaudron and Gummow JJ (at CLR 495;
ALR 152), the following approach was adopted:
There is simply no basis for treating domestic help as necessary for the realisation of earning
capacity and, to the extent that the Court of Appeal thought otherwise, it was clearly wrong.
What a person does or does not do outside working hours may depend on whether he or she has
domestic help, but domestic help has no relevant connection with the earning of income. There
are, however, circumstances in which the cost of caring for very young children may properly be
seen as an “essential prerequisite” to the earning of income and, in this sense, as an outgoing
“necessary for the realisation of [earning] capacity”. However, outgoings which are deducted

[page 404]

for the purpose of calculating economic loss are those which are necessarily incurred in or in
connection with the employment or undertaking by which earning capacity is realised, not those
which are incurred, even as a “necessary prerequisite”, merely to provide an opportunity to
realise that capacity. In a sense, child care can be regarded as an opportunity cost. But even that
mistakes its true nature.
 Child care is a cost that may be incurred by men or women. It may be incurred whether or not
the child’s mother is in the paid workforce. On the other hand, not all women in the paid
workforce incur a cost for the care of their young children. For example, one or more family
members may provide care on a voluntary basis. Moreover, if costs are incurred they will vary
according to the type of care decided upon and decisions in that regard are likely to take account
of various matters besides those directly associated with participation in the paid workforce.
These considerations lead to the conclusion that the cost of child care is simply one of various
costs associated with having children. And as such, the cost is properly characterised for the
purpose of calculating economic loss, as it is for the purposes of taxation law, as essentially
private or domestic in character. So characterized, it is no more to be deducted when calculating
loss of earning capacity than are other items of expenditure for personal amenity. [footnotes
omitted]

In applying these principles, the court concluded (at CLR 498; ALR 153):
Leaving aside the appellant’s previous neck injury and the possibility that she might have taken
unpaid maternity leave, there was little, if anything, in her circumstances to suggest that her
earning capacity was at risk … She was in good health, fit and energetic; she was employed in a
position which would not seem to involve exposure to accident or disease; and as an employee
in a managerial position with American Express, she would not seem to have been at particular
risk of redundancy or the possibility of being involved in industrial disputes.

In that case, the High Court reduced the contingency discount from 25 per
cent to 12½ per cent.

Gratuitous Services
15.89 In Griffiths v Kerkemeyer (1977) 139 CLR 161; 15 ALR 387, the High
Court accepted that a plaintiff disabled as a result of another’s negligence is
entitled to recover a sum in damages representing the value of necessary
services provided gratuitously by a relative or friend. In that case, the plaintiff,
who was rendered a quadriplegic as the result of the defendant’s negligence,
recovered damages which included a sum representing the value of nursing
and other services provided for him in the past and to be provided in the
future by his fiancé and members of his family. In upholding the award, the
court departed from its previous decision in Blundell v Musgrave (1956) 96
CLR 73 at 79 and 92, where the High Court had held that expenses in an
action for damages for personal injuries could only be recovered where there
was, or would be, a legal obligation to pay them. In departing from that view
and recognising this head of damages, the court followed the line of authority
from England: see Roach v Yates [1938] 1 KB 256; [1937] 3 All ER 442;
Cunningham v Harrison [1973] 1 QB 942; 3 All ER 463; Donnelly v Joyce
[1974] QB 454; [1973] 3 All ER 475.

15.90 In Van Gervan v Fenton (1992) 175 CLR 327; 109 ALR 283, the High
Court reconsidered the principles governing gratuitous care services. The
plaintiff was injured in a motor vehicle accident caused by the negligence of
the defendant. As a result of his injuries, the plaintiff was in need of almost
constant care which was provided by his wife

[page 405]

who gave up her employment as a nurse’s aide to care full-time for her
husband. The trial judge calculated the value of the Griffiths v Kerkemeyer
component of the award of damages on the basis of the net wages to be
forgone by the plaintiff’s wife over the period that she would, in all
probability, continue to care for him. The Full Court (Green CJ, Wright and
Crawford JJ) upheld the trial judge’s assessment in respect of these items.
The plaintiff appealed to the High Court on the ground that the damages
should have been assessed by reference to the market value of the services
required by him as a result of the defendant’s negligence, and not by reference
to the loss sustained by his wife. The appeal was upheld. The High Court
confirmed that the true basis of a claim for damages, with respect to care or
services provided gratuitously to a person who has suffered personal injury, is
the need of the plaintiff for those services and the plaintiff does not have to
show that the need is or may be productive of financial loss. Accordingly, the
plaintiff’s damages are not to be determined by reference to the actual cost to
the plaintiff of having the care or services provided or by reference to the
income forgone by the provider of the services, but, generally, by reference to
the market cost of providing the services.
In the joint judgment of Mason CJ, Toohey and McHugh JJ, it was
confirmed (at CLR 333–4; ALR 287–8):
Once it is recognised that it is the need for the services which gives the plaintiff the right to an
award of damages, it follows that the damages which he or she receives are not determined by
reference to the actual cost to the plaintiff of having them provided or by reference to the
income forgone by the provider of the services. As Stephen J pointed out in Griffiths [v
Kerkemeyer (1977) 139 CLR at 178; 15 ALR 387 at 401], the principle laid down in Donnelly “is
concerned not with what outlays of money the plaintiff will in fact incur as a consequence of his
injuries but with the objective monetary ‘value’ of his loss”. Because the market cost of services
is ordinarily the reasonable and objective value of the need for those services, the market cost, as
a general rule, is the amount which the defendant must pay as damages. But in some cases the
market cost may be too high to be the reasonable value of the services. Where, for example, the
cost of providing the services at a remote location is much greater than providing those services
in a densely populated area, it might be necessary to discount the market cost or value of the
services needed by the plaintiff on the ground that the market cost or value was unreasonable in
the circumstances. In other cases, there may be so little competition to provide the services that,
judged objectively, the market cost is not the reasonable value of the services. No doubt the
circumstances of particular plaintiffs may reveal other cases where the market cost of the
services provided is not the reasonable value of the services reasonably needed. But the case will
be rare indeed where the income forgone by the care provider is ever an appropriate guide to the
fair value of the services required by the injured person. Whether the income forgone is below
or above or equivalent to the market cost, the income forgone will usually be irrelevant, for the
market cost will ordinarily represent the objective value of the services. Where there is no
relevant market for the services or the market cost is objectively too high to be reasonable, the
income forgone may be a starting point in cases where the nature and duration of the services
provided and the previous work and hours of the care provider are roughly comparable, but
such cases are likely to be rare.

15.91 Damages for gratuitous service were classified as pecuniary general

damages as it is the need for the services that is being compensated and there
is no resulting financial loss to the injured plaintiff, taking it ‘outside the area
of special damages’: Kars v Kars (1996)

[page 406]
187 CLR 354 at 361; 141 ALR 37 at 39 per Dawson J. Previously, it was held
that in calculating damages for gratuitous services, it was irrelevant that the
carer received any domiciliary nursing care benefit, for example a carer’s
allowance: Wann v Fire and All Risks Insurance Co Ltd [1990] 2 Qd R 596.
However, in Queensland, such an allowance would be taken into account
under s 59(3) of the Civil Liability Act 2003 (Qld), which requires a court to
take into account any offsetting benefit the service provider receives for the
provision of the services and must also consider any periods where the
plaintiff will be in hospital and, therefore, not require the services: see also
Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 23(5).

15.92 Damages for gratuitous services may also be discounted to achieve

the indemnity principle: see 15.142.

Gratuitous services provided by the defendant

15.93 In Lynch v Lynch (1991) 25 NSWLR 411 (Lynch), the problem was
raised of whether there should be a reduction in damages in a Griffiths v
Kerkemeyer situation whenever the provider of the services happens to be the
defendant. In Lynch, the plaintiff had been injured, while unborn in her
mother’s womb, due to the negligent driving of her mother. The point on
appeal was whether the child could recover for the past gratuitous services
provided by her mother, the defendant. Clarke JA for the court summarised
(at 420):
In conclusion I should emphasise the fact that I have considered the problem in the context of a
compulsory insurance scheme. In that context there can be no question that a plaintiff who is
compensated under the Griffiths principle is doubly compensated when the provider of the
gratuitous services is the defendant. That plaintiff receives no more and no less than she would if
those services had not been rendered by the defendant. In this case if the [plaintiff] had sued the
Government Insurance Office (as she was entitled to), or if the vehicle had been uninsured and
was being driven on a public street, and the nominal defendant had been sued, then there could
be no question of double payment nor of over compensation. It is true that it may seem unfair
that an uninsured defendant should be required to pay for services which she renders but that is
such a remote prospect today that it is preferable to accept that anomaly rather than provide the
insurance fund with a benefit at the expense of the plaintiff.
15.94 In the context of compulsory third party liability insurance, the New
South Wales Court of Appeal recognised the injustice which would be
occasioned to the plaintiff if the fortuitous circumstance of the caregiver
being the defendant was allowed to defeat the plaintiff’s claim for
compensation of the need for those services. The issue was also considered in
Gowling v Mercantile Mutual Insurance Ltd (1980) 24 SASR 321; Jones v Jones
[1982] Tas R 282; Gutkin v Gutkin [1983] 2 Qd R 764; Snape v Reid (1984)
Aust Torts Reports ¶80-620; Motor Accidents Insurance Board v Pulford
(1993) Aust Torts Reports ¶81-235; Maan v Westbrook [1993] 2 Qd R 267;
Rosecrance v Rosecrance (1995) 105 NTR 1.

15.95 In Kars v Kars (1996) 187 CLR 354; 141 ALR 37, another motor
vehicle accident case, the High Court unanimously agreed with the decision
of Lynch. As Toohey, McHugh, Gummow and Kirby JJ expressed it (at CLR
382; ALR 57):

[page 407]

The result which is reached is not wholly satisfying. But a consideration of the conflicting
opinions, judicial and academic, in Australia and England demonstrates why this is so. In the
end, a choice must be made as to the least unsatisfactory solution to the problem.

The choice which we prefer reduces the anomalies and absurdities. It lays emphasis on the
provision for the injured plaintiff’s needs, which is the foundation of recovery in such a case. It
avoids an effective windfall to a compulsory statutory insurer, which would depend on its taking
advantage of the fulfilment by a family member (who happens to be the tortfeasor) of
obligations derived from duty and affection. It measures to the full the plaintiff’s need for
services. To the extent not already done, it requires their reflection in the premium costs of
compulsory insurance levied on insureds as a whole. It reduces the risk of real injustice to a
plaintiff should a court, discounting the damages for the plaintiff’s needs to be fulfilled by the
tortfeasor, fail adequately to take into account the vicissitudes of life which could throw the
plaintiff back on others, including commercial care givers, for services no longer provided by the
tortfeasor.

Legislative restrictions
15.96 The damages awarded for gratuitous services are often a significant
component of an award for personal injury, in particular to seriously injured
plaintiffs. However, to disallow such a claim would lead to an increase in
general damages for pain and suffering or loss of amenities if the plaintiff had
to leave the home in order to be looked after adequately. In response to the
large awards, many jurisdictions enacted legislation either limiting or
abolishing the right to damages for gratuitous damages.

15.97 Damages for gratuitous services are treated differently in the

jurisdictions in respect of the no fault compensation schemes. For example, in
Victoria, there is no recoverability in motor and workplace accident cases:
Transport Accident Act 1986 (Vic) s 93(10)(c); Accident Compensation Act
1985 (Vic) s 135A(10)(b).

15.98 Many jurisdictions address the issue of gratuitous services in the

civil liability legislation, imposing thresholds and maximums on the right of
recovery: Civil Liability Act 2002 (NSW) s 15; Personal Injuries (Liabilities
and Damages) Act 2003 (NT) s 23; Civil Liability Act 2003 s 59 (Qld); Civil
Liability Act 1936 (SA) s 58; Civil Liability Act 2002 (Tas) s 28B; Wrongs Act
1958 (Vic) s 28IA; Civil Liability Act 2003 (WA) s 12. Only the Australian
Capital Territory has chosen not to limit or set thresholds for the recovery of
gratuitous services arising from personal injuries other than arising from
work accidents and motor vehicle accidents.

15.99 As to be expected, in light of the fact that damages for gratuitous

services may be quite substantial, the legislative restrictions have raised many
interpretation issues. Section 59(1) of the Civil Liability Act 2003 (Qld) states:
Damages for gratuitous services provided to an injured person are not to be awarded unless —
(a) the services are necessary; and
(b) the need for the services arises solely out of the injury in relation to which damages are
awarded; and
(c) the services are provided, or are to be provided —
(i) for at least 6 hours per week; and
 (ii) for at least 6 months.

[page 408]

15.100 In Kriz v King [2007] 1 Qd R 327, it was argued by the appellant

that the correct interpretation of the provision was that no damages for future
gratuitous services could be awarded unless the evidence was that the care
would continue to be at least six hours per week. The Queensland Court of
Appeal held that s 59 was to be interpreted in a way that least reduced a
plaintiff’s claim for damages as rights before the civil liability legislation had
been unfettered. Therefore, once the threshold of six hours per week for at
least six months was met, damages for gratuitous services could be awarded
even if the future care would be less than six hours a week. However, this
approach has been criticised. It is argued that the presumption that
parliament does not intend to abrogate common law rights applies to
‘fundamental rights, immunities and freedoms’, but not to the civil liability
legislation: Harrison v Melhem (2008) 72 NSWLR 380 at [7] per Spigelman
CJ. This argument is based upon comments from members of the High
Court: see, for example, Gifford v Strang Patrick Stevedoring Pty Ltd (2003)
214 CLR 269; 198 ALR 100 at [36] per McHugh J; Regie Nationale des Usines
Renault SA v Zhang (2002) 210 CLR 491; 187 ALR 1 at [143]–[147] per Kirby
J.

15.101 In Clement v Backo [2007] 2 Qd R 99, the plaintiff was injured as a

passenger in a motor vehicle accident. The defendant admitted liability and
the trial judge assessed damages to include gratuitous services. The gratuitous
services were provided by the plaintiff’s wife in maintaining a commercial
timber plantation. The trial judge held that the gratuitous services arose solely
from the accident. Had the wife not worked in the plantation, the plaintiff
would have suffered economic loss. Applying the principles of Medlin v State
Government Insurance Commission (1995) 182 CLR 1 (see 15.68), the Court
of Appeal held that the plaintiff’s entitlement to damages for his loss of
earning capacity should not be reduced because of the wife’s gratuitous
services. The Court of Appeal agreed with the trial judge that the wife’s work
in the timber plantation was ‘unquestionably’ gratuitous services: at [34]. The
court referred to CSR Ltd v Eddy (2005) 226 CLR 1; 222 ALR 1, noting that
the High Court had indicated that ‘the principle in Griffiths v Kerkemeyer
strongly emphasises the anomalous character of such an award of damages
and that the principle should not be extended in the absence of clear
authority’: at [31].

15.102 In the Queensland Act there is no definition of ‘gratuitous services’

and therefore the meaning is as at common law in Griffiths v Kerkemeyer
(1977) 139 CLR 161; 15 ALR 387; Kriz v King [2007] 1 Qd R 327 at [12].

15.103 The civil liability legislation in some jurisdictions specifies the

hourly rate at which gratuitous services are to be calculated: Civil Liability Act
2002 (NSW) s 15(4), (5); Personal Injuries (Liabilities and Damages) Act 2003
(NT) s 23(3), (4); Civil Liability Act 2002 (Tas) s 28B(3); Wrongs Act 1958
(Vic) s 28IB; Civil Liability Act 2003 (WA) s 12(5).

Gratuitous Domestic Services

15.104 In Sullivan v Gordon (1999) 47 NSWLR 319, it was held that an
injured plaintiff could claim damages for the loss of their capacity to provide
gratuitous services for another because of their injury. The damages were
assessed at the commercial rate of such services. The decision was followed in
the Australian Capital Territory (Brown v Willington [2001] ACTSC 100) and
Western Australia: Easther v Amaca Pty Ltd [2001] WASC 328;

[page 409]
Thomas v Kula [2001] WASCA 362. Such damages had previously been
permitted in Queensland: Sturch v Willmott [1997] 2 Qd R 310; Waters v
Mussig [1986] 1 Qd R 224.
The High Court in CSR Ltd v Eddy (2005) 226 CLR 1; 222 ALR 1 overruled
Sullivan v Gordon and held that such damages could not be claimed and that
the principles of Griffiths v Kerkemeyer could not be applied to such claims by
analogy. If a plaintiff can no longer provide gratuitous services to another,
such a loss may be compensated as a loss of amenity: at [76].

15.105 In response to the decision of CSR Ltd v Eddy, some jurisdictions

have amended the civil liability legislation to allow compensation in limited
circumstances. For example, in Queensland, a plaintiff may claim damages
for the loss of being unable to provide gratuitous domestic services if:
the plaintiff is entitled to a specified minimum of general damages;
the recipient of the services is either an unborn child of the plaintiff or
a person who resides at the plaintiff’s residence;
but for their injury the plaintiff would have provided care for at least
six hours a week for six months; or
the need for the care is reasonable in all of the circumstances: Civil
Liability Act 2003 (Qld) s 59A.
See also Civil Law (Wrongs) Act 2002 (ACT) s 100; Civil Liability Act 2002
(NSW) s 15B; Wrongs Act 1958 (Vic) s 28ID.

15.106 Liverpool City Council v Laskar (2010) 77 NSWLR 666 considered

the meaning of ‘gratuitous domestic services’ as in the New South Wales
legislation. In that case damages were awarded to the plaintiff to compensate
for the loss that he was not able to provide care to his 14-year-old daughter
who had spina bifida. The evidence was that prior to his injury, the care he
provided to his daughter included daily basic physiotherapy and massage.
‘Gratuitous domestic care’ is defined in s 15B(1) of the Civil Liability Act 2002
(NSW) as ‘services of a domestic nature for which the person providing the
service has not been paid or is not liable to be paid’. The defendant argued on
appeal that this was not domestic care as defined in the Act but equated with
palliative or nursing care, relying upon the differences between ss 15 and 15A
of the Act. Section 15 contains a definition of ‘gratuitous attendant care
services’ which includes nursing services. Section 15A, which provides for
damages for gratuitous attendant care services in proceedings of dust disease,
states that the definition of ‘gratuitous attendant care services’ has the same
meaning as in s 15. By not referring to the definition in s 15, it was alleged
that parliament intended there to be a difference between s 15B and the other
sections, and it did not include nursing care. The court held that the phrase
‘domestic services’ was to be given its ordinary meaning: at [62]. Whealy J
stated (at [57]–[58]):
Damages for gratuitous attendant care services under s 15 pre-supposes an injured plaintiff with
a need for those care services. In that circumstance, it is understandable that the legislature has
posed a range of care services (not mutually exclusive) which travel beyond the provision of
services of a domestic nature. In serious injury cases, for example, (such as quadriplegia, brain

[page 410]

damage and the like) friends and family may provide the plaintiff with a wide range of services
in a hospital or a rehabilitation centre. …

By contrast, the phrase “domestic services” in s 15B does not envisage as a matter of necessity
that a claimant’s dependants will be injured or require special care treatment because of physical
or mental disability. Nevertheless, s 15B(2)(b) recognises that the damages may only be awarded
where the claimant’s dependants were not (or will not be) capable of performing the services
themselves by reason of their age or physical or mental incapacity. The key to s 15B is the
relationship of dependency, coupled with the reasons why it is that dependants were not and
will not be capable of performing the services themselves. The meaning to be given to the phrase
“domestic services” in any particular context will vary according to the nature of the
dependency, the obligations the relationship will normally impose, and the history of the
provision of past domestic services.

Non-Pecuniary General Damages

15.107 Assessment of non-pecuniary general damages, the non-economic
loss, requires the court to consider losses that are subjective to the plaintiff.
Prior to the civil liability legislation, these damages were assessed under the
following heads of damage:
pain and suffering;
loss of amenities/enjoyment of life; and
loss of expectation to life.
Each non-pecuniary head of damage was considered separately and
itemised. Under the civil liability legislation, these subjective losses are taken
into account, but instead of an individual assessment of each, a tariff system is
applied according to the type of injury suffered by the plaintiff.

15.108 The non-pecuniary general damages are referred to by various

names in the civil liability legislation:
non-economic loss — Australian Capital Territory, New South Wales,
South Australia, Tasmania and Victoria: Civil Law (Wrongs) Act 2002
(ACT) s 99(4); Civil Liability Act 2002 (NSW) s 3; Civil Liability Act
1936 (SA) s 3; Civil Liability Act 2002 (Tas) s 3; Wrongs Act 1958 (Vic)
s 28B;
general damages — Queensland: Civil Liability Act 2003 (Qld) s 51;
and
non-pecuniary loss — Northern Territory and Western Australia:
Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 24; Civil
Liability Act 2002 (WA) s 9(4).
However, nearly all encompass the following:
pain and suffering;
loss of amenities of life;
loss of expectation of life; and
disfigurement or bodily harm (not included in Wrongs Act 1958
(Vic)).
15.109 With the exception of Tasmania and the Australian Capital
Territory, legislative caps have been imposed on the recovery of non-
pecuniary general damages: Civil Liability Act 2002 (NSW) s 16(2); Personal
Injuries (Liabilities and Damages) Act 2003 (NT) s 27;

[page 411]

Civil Liability Act 2003 (Qld) s 62; Civil Liability Act 1935 (SA) s 52(2);
Wrongs Act 1958 (Vic) s 28G; Civil Liability Act 2002 (WA) s 10. The
maximum amount allowed is indexed annually.

15.110 The legislation of New South Wales, the Northern Territory, South
Australia, Tasmania and Western Australia also contains thresholds for the
recovery of general damages. For example, Civil Liability Act 2002 (NSW) s
16(1) states, ‘[n]o damages may be awarded for non-economic loss unless the
severity of the non-economic loss is at least 15% of a most extreme case’.
See also Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 27(2)
(permanent impairment of less than 5 per cent of the whole person); Civil
Liability Act 1935 (SA) s 52(1) (prescribed minimum medical expenses and
significant impairment of at least seven days); Civil Liability Act 2002 (Tas) s
27(1) (amount less than prescribed amount); Civil Liability Act 2002 (WA) s
9(1) (amount less than prescribed amount).

Assessment of non-pecuniary general damages

15.111 The actual process of assessment of general damages varies
between the states and territories. In New South Wales, the plaintiff’s non-
economic loss is assessed as a percentage of the most extreme case (an
amount indexed annually) and then applied to the table in s 16 of the Civil
Liability Act 2002 (NSW) to come to the monetary figure. A similar process is
adopted in the Northern Territory: Personal Injuries (Liabilities and
Damages) Act 2003 (NT) s 27. The majority of jurisdictions simply allow the
court to have regard to earlier decisions in respect of non-economic loss: Civil
Law (Wrongs) Act 2002 (ACT) s 99; Wrongs Act 1958 (Vic) s 28HA; Civil
Liability Act 2002 (Tas) s 28; Wrongs Act 1958 (Vic) s 28HA; Civil Liability
Act 2002 (WA) s 10A. Sliding scales have been adopted by Queensland and
South Australia.

15.112 Queensland The recommendation of the Ipp Report5 of a tariff

system for the assessment of non-pecuniary loss was adopted by Queensland.
Section 61 of the Civil Liability Act 2003 (Qld) requires the court to allocate
an injury scale value (ISV) between 0–100 to the plaintiff’s injuries. Schedule
4 of the Civil Liability Regulation 2014 (Qld) itemises all possible physical
injuries and provides a range of ISVs for each. Section 2 of Sch 3 of the Civil
Liability Regulation 2014 (Qld) provides, ‘[t]he range of ISVs for the injury
reflects the level of adverse impact of the injured person’. To allocate an ISV,
a court must assess the ISV as required by regulation and have regard to ISVs
allocated to similar injuries in previous proceedings: Civil Liability Act 2002
(Qld) s 61(1)(c); Civil Liability Regulation 2014 (Qld) s 7.

15.113 The regulation provides a range of rules a court must follow:

If the plaintiff has suffered multiple injuries, the court must identify
the dominant injury (Civil Liability Regulation 2014 (Qld) Sch 3, s 3),
defined as the injury with the highest range of ISV: Civil Liability
Regulation 2014 (Qld) Sch 8.

[page 412]

Any adverse psychological reaction to a physical injury is merely a

feature of the injury: Civil Liability Regulation 2014 (Qld) Sch 3, s 5.
If the plaintiff suffers an aggravation of a pre-existing condition, ‘the
court may have regard only to the extent to which the pre-existing
 condition has been made worse by the injury’: Civil Liability
Regulation 2014 (Qld) Sch 3, s 7.

15.114 As to how a court determines the ISV, various factors may be

relevant. The court must take into account the provisions relevant to Sch 4 of
the Regulation which provides examples of the injury, factors that will affect
the ISV assessment and comments about the appropriate level of ISV: Civil
Liability Regulation 2003 (Qld) Sch 3, s 8.
If the medical reports state a whole person impairment percentage, the
court must have regard to it but it is not the only consideration when
allocating the ISV: Civil Liability Regulation 2014 (Qld) Sch 3, s 10. In
Schedule 4, many of the comments as to the appropriate level of ISV refer to a
whole person impairment percentage. ‘Whole person impairment’ is defined
as ‘an estimate, expressed as a percentage, of the impact of a permanent
impairment caused by the injury on the [plaintiff’s] overall ability to perform
activities of daily living other than employment’: Civil Liability Regulation
2014 (Qld) Sch 8.

15.115 In addition to the comments provided by the relevant item in Sch

4, a court may take the following into account if relevant:
the plaintiff’s age and life expectancy;
the degree of insight;
pain and suffering;
loss of amenities;
the effects of any pre-existing injury;
difficulties in life that were likely to have emerged for the plaintiff even
if not injured; and
the ISV ranges and comments of injuries other than the identified
dominated injury: Civil Liability Regulation 2014 (Qld) Sch 3, s 9.
Under the common law, a court took into account these factors when
assessing non-pecuniary losses.
Age and life expectancy
15.116 The plaintiff’s age will influence the court’s assessment, particularly
where the plaintiff suffers permanent injury. A young plaintiff with
permanent injuries would warrant a higher award than an elderly plaintiff
with the same injuries. This was pointed out in Reece v Reece (1994) 19 MVR
103, a decision under the Motor Accidents Act 1988 (NSW) which assesses
non-economic loss as a percentage of the most extreme case as does the Civil
Liability Act 2002 (NSW). In that case the trial judge accepted that the
plaintiff’s non-economic loss was 33⅓ per cent of a most extreme case. The
plaintiff was 64 years old. On appeal, the assessment was reduced. Handley JA
stated (at 105):

[page 413]

The difficulty, in my opinion, with his Honour’s assessment is to reconcile it with the
assessment that might properly be made in the case of a much younger woman, say 30 years old,
who before her injury had a similar range of interests and hobbies but had young children to
help bring up and who, of course, faced a much longer period during which she would
experience the pain, the disabilities and the progression of her condition.

It seems to me that when one seeks to compare the position of this plaintiff with a woman, say,
30–35 years younger than herself at the date of injury, it becomes evident that an assessment of
this plaintiff as being 1/3 of a most extreme case is a wholly erroneous assessment and
disproportionate to a true assessment of the extent of her loss.

15.117 Age is also relevant when considering pain and suffering and loss
of amenities. Under the common law, if the plaintiff’s life was expected to end
earlier due to the defendant’s negligence, damages for loss of expectation of
life were allowed. Such damages for loss of expectation of life were awarded in
respect of the subjective and objective loss of prospective happiness for the
period by which the plaintiff’s life has been reduced: Sharman v Evans (1977)
138 CLR 563; 13 ALR 57; Jackson v Jackson (1970) 2 NSWR 454. The courts
judicially legislated to provide a conventional sum for the objective loss to
acknowledge that the plaintiff’s life would not be as long as expected due to
the negligence of the defendant: Suley v City Joiners Pty Ltd (1970) 65 QJPR
141; Richters v Motor Tyre Service Pty Ltd [1972] Qd R 9; Gannon v Gray
[1973] Qd R 411.

15.118 Therefore, even an unconscious plaintiff would have been entitled

to this part of the award. Being an objective component, the plaintiff’s age,
social status or the length of life to be lost were irrelevant.

Degree of insight
15.119 Whether or not the plaintiff is aware of their changed
circumstances is relevant in assessing non-pecuniary general damages. A
plaintiff who is fully aware of their condition or the change in their
circumstances is entitled to more damages than a plaintiff who has no level of
awareness.
A plaintiff’s degree of insight is also relevant to assessing their pain and
suffering (see 15.122) and loss of amenities: see 15.127; Skelton v Collins
(1966) 115 CLR 94.

Pain and suffering

15.120 In Teubner v Humble (1962) 108 CLR 491 at 507, Windeyer J noted
that the phrase ‘pain and suffering’ contemplates the actual physical pain and
was the head of damages ‘least susceptible of monetary assessment’.

15.121 Pain and suffering is an entirely subjective sensation of distress.

The extent and the duration of the pain and suffering are relevant: see O’Shea
v Sullivan (1994) Aust Torts Reports ¶81-273; Casey v Zurgalo [1968] ALR
134. Other relevant factors are:
the circumstances giving rise to the injury (Freudhofer v Poledano
[1972] VR 287 — plaintiff caught underneath defendant’s vehicle and
dragged);
 distress, worry or anxiety caused by necessary medication (O’Shea v
Sullivan (1994) Aust Torts Reports ¶81-273 — plaintiff required to
take morphine); and

[page 414]

mental illness consequent upon physical injuries: Admiralski v

Stehbens [1960] Qd R 510.

15.122 It is assumed that a plaintiff who is permanently unconscious

cannot feel pain and suffering. For example, see Skelton v Collins (1966) 115
CLR 94, in which a 17-year-old remained unconscious from the date of the
motorcycle accident up to the date of trial and was likely to remain
unconscious until death. Taylor J held (at 108):
If a plaintiff’s condition, as a result of his injuries, is such that he is insensible to physical pain
and suffering, it would be inappropriate to award damages under this head, the reason for this
being simply that a plaintiff in such a condition does not experience pain and, consequently,
does not suffer on that account.

15.123 Included in pain and suffering is any discomfort, inconvenience

and frustration experienced by the plaintiff due to their injuries: Admiralski v
Stehbens [1960] Qd R 510.

Loss of amenities
15.124 ‘Loss of amenities’ (also called ‘loss of enjoyment of life’) refers to
the deprivation of the ability of the plaintiff to participate in normal activities
and to enjoy life to the full: Teubner v Humble (1962) 108 CLR 491; Parker v
Parker [1979] Qd R 50. The plaintiff’s age, lifestyle and awareness will be
relevant.

15.125 A comparison is made between the activities that the plaintiff

participated in prior to their injuries and those afterwards. A plaintiff who
participated in sports regularly or had various hobbies that due to their
injuries they can no longer carry out would receive more damages than a
plaintiff whose daily activities had not altered significantly.
Loss of tribal status to an indigenous person is considered to be a loss of
amenity. For example, in Napaluma v Baker (1982) 29 SASR 192, the plaintiff
was disfigured in a road accident, preventing tribal marking of the body for
initiation purposes. This was followed in Dixon v Davies (1982) 17 NTR 31,
where a loss of cultural fulfilment was relevant under loss of amenities and
pain and suffering: at 34. See also Weston v Woodroffe (1985) 36 NTR 34.

15.126 The plaintiff’s age is a consideration; however, it should not be

assumed that an older plaintiff would experience significantly less in respect
of enjoyment of life. In Miller v Imperial College Healthcare NHS Trust [2014]
EWHC 3772 (QB), the court rejected the defendant’s argument that the age of
the plaintiff, 70 at the date of trial, would significantly affect the assessment of
damages for pain and suffering and loss of amenities. At the time of the
negligence the plaintiff was 63 years old and was ‘young for her years, fit and
active, and intending to work for as long as she could’: at [25]. A deduction
was appropriate in light of the plaintiff’s age, but the award should be fair and
just to recognise that she had the advantage of good physical fitness, agility
and mobility before the defendant’s negligence.

15.127 If the plaintiff is not able to understand the loss, a lower ISV would
be applicable. In Skelton v Collins (1966) 115 CLR 94 at 113, Taylor J stated:
The expression “loss of amenities of life” is a loose expression but as a head of damages in
personal injury cases it is intended to denote a loss of the capacity of the injured person
consciously to enjoy life to the full as, apart from his injury, he might have done. … a proper
assessment can

[page 415]

be made only upon a comparison of the condition which has been substituted for the victim’s
 previously existing capacity to enjoy life and where the mind is, as it were, willing and the body
incapable there is, in my view, a much higher degree of loss than where the victim is completely
insensible to his lost capacity.

Pre-existing condition
15.128 If the plaintiff had a pre-existing condition, this may impact upon
the assessment of their general damages. A court will consider whether the
defendant’s negligence is the cause of the pain and suffering or loss of
amenities, or whether the pre-existing condition has been aggravated to affect
these factors. For example, in Phillips v MCG Group Pty Ltd [2012] QSC 149,
the plaintiff had a pre-existing injury to his lumbar spine which required
medication for pain management. When injured due to the defendant’s
negligence, the plaintiff suffered further injury to their spine and required
increased medication. The court held (at [52]):
In view of the significant medications that the plaintiff required in order to function before the
accident, it would not reflect the reality of his pre-accident condition to compensate him on the
basis that the accident should be treated as the cause of all his pain and suffering. His enjoyment
of life had been diminished prior to the accident by the persistent pain level that required
significant medications.

Other Expenses
15.129 As the aim of compensatory damages is to place the plaintiff in the
position as if no wrong was committed against them, any other expenses may
be claimed if they were reasonably necessary for the plaintiff’s condition.

15.130 If a plaintiff requires their home to be remodelled to allow

wheelchair access, this may be claimed as part of the damages. In Diamond v
Simpson (No 1) (2003) Aust Torts Reports ¶81-695, the respondent suffered
cerebral palsy due to the negligence of a doctor at the time of her birth. In her
action in negligence, the respondent’s claim included the cost of a home
either being purpose-built for her or of one being modified, plus the cost of
modifications to her parents’ home, where she had lived for most of her life,
as well as modifications to two family holiday houses. The trial judge allowed
all of the claims except for the holiday home at Thredbo. On appeal, the
appellant argued that the modification costs were unreasonable and
disproportionate. The New South Wales Court of Appeal agreed, holding that
no allowance should be made for modifications to the parents’ home as the
respondent was going to be living elsewhere. As for the holiday home, the
evidence was that the family used it only for two weeks a year and, although
modifications would increase the respondent’s accessibility, it was
unreasonable to allow such a claim.

15.131 A claim may also be made for the cost of administering the award
of damages if the need for the administrator is due to the plaintiff’s inability
to manage their funds due to the injury they suffered from the defendant’s
negligence. In Government Insurance Office of New South Wales v Rosniak
(1992) 278 NSWLR 665 at 684–5, Mahoney JA stated:
Many, if not most, plaintiffs lack the appropriate skill to manage a large award. But that does not
mean that, when the amount awarded is large, the management costs are to be seen as

[page 416]

resulting from the defendant’s negligence. Often, perhaps ordinarily, they will not. On the other
hand, where the defendant’s negligence produces a particular incapacity in the plaintiff such
that, because of that capacity, her affairs must be managed for her, that I think will be usually
sufficient.

The High Court considered the issue of costs that may be allowed to
manage an award of damages for personal injury in Willett v Futcher (2005)
221 CLR 627; 221 ALR 16. The High Court held that if a plaintiff requires that
an administrator be appointed to manage their financial affairs due to their
incapacity to manage their own, arising from the negligence of the defendant,
the cost of the administrator in the management of the funds is recoverable.
Therefore, a claim for the reasonable charges and expenditure incurred
during the intended life of the fund is allowed: at [49]. See also Gray by her
tutor Gray v Richards (2014) 253 CLR 660; 313 ALR 579; Nominal Defendant
v Gardikiotis (1996) 186 CLR 49.
In South Australia, no damages may be awarded to compensate for the cost
of the investment or management of the amount awarded: Civil Liability Act
1936 (SA) s 57.

15.132 If a plaintiff is severely injured, just as they may need an

administrator to manage their award of damages, they may need an
independent case manager to organise their care. For example, in Waller v
Suncorp Metway Insurance Ltd [2010] 2 Qd R 560, the plaintiff was in a
motor vehicle accident at the age of 12. He was severely brain damaged and in
need of constant care. An award of over $5 million was made and on appeal it
was argued that the assessment was inadequate. One component of the claim
was for the cost of an independent case manager. The court allowed the claim
and stated (at [98]):
Such a person would objectively assess his care needs on an ongoing and evolving basis and
ensure that appropriate care arrangements are in place. Such an arrangement would ensure the
suitability and the quality of care to be provided. It also affords a level of protection to the
plaintiff, as well as ensuring he has someone independent who can assess and advocate for his
care needs as they change with his age and as the circumstances around him change.

Achieving the Indemnity Principle

15.133 As noted at 15.31, the indemnity principle requires that the award
of damages does not over- or under-compensate the plaintiff. In assessing
earning capacity, this is partly achieved by making a deduction of the
vicissitudes of life, assessing the loss as the net wage and ensuring that any
overlap between past loss of earning capacity reflects any award of special
damages for time spent in hospital: see 15.83. The following are also relevant
in achieving the indemnity principle.

Benefits from other sources

15.134 Collateral benefits which flow to the plaintiff from the defendant’s
wrongdoing may need to be set off against damages under the indemnity
principle, to ensure that the plaintiff is not compensated twice for the same
loss. In order for benefits to be set off under the indemnity principle, they
must result from the tortious conduct.
However, not all benefits will be set off. For example, the proceeds of the
plaintiff’s own private insurance are not set off (Bradburn v Great Western
Railway Co (1874) LR 10 Ex 1), nor are voluntary payments by way of gifts or
free medical attention: Cusack v Heath [1950]

[page 417]

QWN 16. In National Insurance Co of New Zealand Ltd v Espagne (1961) 105
CLR 569 at 598, Windeyer J reasoned that voluntary gifts should not be taken
into account to reduce damages as ‘they are given for the benefit of the
sufferer and not the benefit of the wrongdoer’. In Papadopoulos v MC Labour
(Ruling No. 2) [2009] VSC 176 at [12], Beach J stated:
Generally a court is required to consider the nature of the benefit which is
sought to be set off against a plaintiff’s damages, and to inquire whether the
person or body supplying the benefit intended that the plaintiff should enjoy
it in addition to whatever damages he might recover.
See also Zheng v Cai (2009) 261 ALR 481 at [20], where the High Court
stated:
The “intent” of the donor thus assumed great importance, but it was an intent of a particular
character, contrasting an intention to benefit the wrongdoer with an intention to benefit the
victim.

15.135 Employment benefits If a plaintiff receives sick pay in lieu of

wages, any such amount will be set off against the award for the loss of
earnings as the plaintiff will have suffered no loss: Graham v Baker (1961) 106
CLR 340.
 If the plaintiff is so incapacitated that their employment ends, no deduction
is made for any entitlement to a pension or superannuation payments:
Watson v Ramsay [1960] NSWR 462; Grego v Mt Isa Mines Ltd [1972] QWN
33; Graham v Baker (1961) 106 CLR 340.
If a plaintiff accepts a redundancy package from their employer, the
benefits are not set off unless the defendant can prove that the benefit was for
the purpose of replacing lost earning capacity independent of any action
against the defendant: Hall v Cramer (2003) 40 MVR 477. Redundancy
payments arise upon termination of employment and are based upon the
number of years of service.

15.136 Voluntary payments by an employer In Hobbelen v Nunn [1965]

Qd R 105, it was held that if an employer makes a gift of money to an injured
employee, usually this payment is not taken into account when assessing
damages, unless the payment was intended to replace wages. Therefore, in
Koremans v Sweeney [1966] QWN 46, when an employer paid wages to an
injured employee beyond his entitlement to sick pay, there was no loss of
income suffered. However, in Treloar v Wickham (1961) 105 CLR 102, the
injured employee entered into an agreement to pay back to the employer a
sum equal to lost wages advanced as a loan when his claim was finalised. This
amount was not set off.

15.137 Workers’ compensation A plaintiff who has received workers’

compensation and successfully recovers damages under the common law is
required to pay back any workers’ compensation payments received.
Therefore, no set-off is made by the court as such but, in the calculation of the
damages, the amount of workers’ compensation paid is deducted as the
relevant authority has a first charge over the award: Workers’ Compensation
Act 1954 (ACT) s 184(2); Workers’ Compensation Act 1987 (NSW) s
151A(2); Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 207B;
Return to Work Act 2014 (SA) s 75; Workers Rehabilitation and
Compensation Act 1988 (Tas) s 133; Workers’ Compensation Act 1958 (Vic)
s 65(1); Workers’ Compensation and Injury Management Act 1981 (WA) s
92. There is no right to common law damages for work-related injuries in the
Northern Territory: Return to Work Act 1986 (NT) s 52.

[page 418]

As tax is paid on workers’ compensation, a plaintiff may claim as part of

their award the tax paid, as they are required to repay the gross amount
received: Fox v Wood (1981) 148 CLR 438.

15.138 Social security benefits The effect of decisions of the Australian

courts in regard to whether social security payments should be set off (for
example, National Insurance Co of New Zealand Ltd v Espagne (1961) 105
CLR 569; Redding v Lee (1983) 151 CLR 117) have largely been abrogated by
the Social Security Act 1991 (Cth).
The Act requires that compensation payments — including workers’
compensation, motor vehicle accident and common law damages for
personal injury — be taken into account in determining eligibility for certain
pensions, benefits or allowances: Social Security Act 1991 (Cth) s 17(1). Past
payments of social security may be recovered as a result of receipt of a lump
sum damages award (Social Security Act 1991 (Cth) s 1178) and a notice may
be served upon the defendant requiring that they repay the amount owing
directly: s 1184.
Therefore, if a plaintiff has received social security payments and receives
common law damages, the payments made may be recovered as a debt owing
to the Commonwealth.

15.139 Medicare benefits under the Health Insurance Act 1973 (Cth) are
not available to a person who has received a damages award and should,
therefore, also be ignored for the purposes of damage assessments. The
legislation requires repayment of Medicare benefits already received by a
subsequently successful litigant: Health Insurance Act 1973 (Cth) s 18.

Future economic losses

15.140 A plaintiff whose award of damages includes compensation for
future economic loss is receiving a benefit that may mean they are over-
compensated, in contravention of the indemnity principle. Receipt of a lump
sum provides a plaintiff with an investment opportunity that he or she would
never have had in real life. For example, if a plaintiff is compensated for loss
of future earning capacity, they receive a lump sum amount representing that
loss. Under normal circumstances, this income would be earned over a period
of time. Likewise, if a plaintiff is compensated for the cost of future medical
and hospital treatment, they are provided with a lump sum before the costs
are incurred. The same principle applies to all awards for future pecuniary
losses. However, against this must be balanced the effect of inflation on any
lump sum award which will diminish its value over time.

15.141 Past inflation is often held to be relevant to:

loss of earning capacity having an effect on earnings to the date of trial;
medical and similar expenses; and
a consideration of past awards in determining the damages appropriate
for non-pecuniary loss to the date of verdict.
Future inflation is generally held to be not relevant to loss of earning
capacity, but may be in relation to future medical and similar expenses:
O’Brien v McKean (1968) 118 CLR 540; Scott v Heathwood [1953] St R Qd 91;
Murphy v Houghton & Byrne (Qld) Pty Ltd [1964] QWN 6; Todorovic v
Waller (1981) 150 CLR 402; 37 ALR 481; Lim Poh Choo v Camden

[page 419]
& Islington Area Health Authority [1980] AC 174. For example, the cost of an
operation at the time of trial will not be the same in five years time when the
plaintiff may actually incur the cost for it.
The primary reasons given for refusing to take account of inflationary wage
increases have been their speculative nature and difficulty of proof: Todorovic
v Waller (1981) 150 CLR 402; 37 ALR 481. Instead, inflation is allowed for by
the view that the sum awarded may be invested as a counter to inflation.

15.142 In ascertaining the present value of future economic losses, it is

necessary to discount to take account of both the interest obtainable on the
investment and the possibility that it will, in fact, never be spent. One method
is to apply a discount rate to awards of future economic loss. The High Court
had considerable difficulty in deciding upon the appropriate discount rate:
see Pennant Hills Restaurants Pty Ltd v Barrell Insurances Ltd (1981) 145 CLR
625; 34 ALR 162, where the various members of the court held that discounts
of 0 per cent, 2 per cent and 5 per cent were appropriate. In Todorovic v
Waller (1981) 150 CLR 402; 37 ALR 481, the court judicially legislated for a 3
per cent figure, but only as a compromise, since the individual preferences
ranged from 4 per cent (Gibbs CJ and Wilson J), to 3 per cent (Aikin and
Brennan JJ), to 2 per cent (Mason J) and 0 per cent (Stephen and Murphy JJ).
Australian jurisdictions have legislated that awards of lump sums for future
economic loss are discounted at a prescribed rate. For example, s 57 of the
Civil Liability Act 2003 (Qld) provides:
(1) When assessing an amount of damages as a lump sum for a future loss or gratuitous
services, the amount must be the present value, calculated using the prescribed discount
rate, of the future loss or gratuitous services.
(2) In this section—
prescribed discount rate, for an award, see the Civil Proceedings Act 2011, section 61.

See also Civil Liability Act 2002 (NSW) s 14 (5 per cent); Personal Injuries
(Liability and Damages) Act 2003 (NT) s 22 (5 per cent); Civil Proceedings
Act 2011 (Qld) s 61 (5 per cent); Civil Liability Act 1936 (SA) ss 3, 55 (5 per
cent); Civil Liability Act 2002 (Tas) s 28A (5 per cent); Wrongs Act 1958 (Vic)
s 28I (5 per cent); Law Reform (Miscellaneous Provisions) Act 1941 (WA) s 5
(6 per cent). In the Australian Capital Territory, the default rate of 3 per cent
applies as judicially legislated in Todorovic v Waller (1981) 150 CLR 402; 37
ALR 481.

Interest
15.143 A court may order that interest will be included in the sum for
which judgment is given at such rate as it thinks fit on the whole or any part
of the sum, for the whole or any part of the period between the date when the
cause of action arose, not the date of the writ (Parker v Guardian Fire
Sprinkler Co (Qld) Pty Ltd [1982] Qd R 709), and the date on which judgment
takes effect.

15.144 Although interest is discretionary, interest should be awarded in

the normal case: Hadzigeorgiou v O’Sullivan [1983] 1 Qd R 55. The different
pieces of legislation deal with

[page 420]

the extent of a court’s discretion to award interest in different ways: Judiciary

Act 1903 (Cth) s 77MA; Court Procedures Rules 2006 (ACT) s 1619; 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.
Tasmania, alone, has a peculiarly limited discretion: Supreme Court Civil
Procedure Act 1932 s 35.

15.145 In Fire and All Risks Insurance Co Ltd v Callinan (1978) 140 CLR
427; 21 ALR 375, the High Court affirmed the decision of the Full Court of
the Supreme Court of Queensland that, in the exercise of the discretion
conferred by such legislation (Common Law Practice Act 1867 (Qld) s 72, the
equivalent of the present Civil Proceedings Act 2011 (Qld) s 58), the trial
judge should distinguish items of detriment suffered to the date of judgment
as well as those to be suffered in the future and, in particular, interest should
be allowed only on that part of the damages for loss up to the date of
judgment.

15.146 The High Court had endorsed a discretion to award ordinary

commercial rates of 12 per cent: Cullen v Trappell (1980) 146 CLR 1; 29 ALR
1; Gould v Vaggelas (1985) 157 CLR 215; 62 ALR 527. However, MBP (SA)
Pty Ltd v Gogic (1991) 171 CLR 657; 98 ALR 193 overruled Cullen v Trappell
on the point that the ordinary commercial rate should be applied to the non-
pecuniary components of the award, applying instead a rate of 4 per cent to
achieve fair and reasonable compensation. This lower rate also was to apply
to damages for gratuitous services: Grincelis v House (2000) 201 CLR 321; 173
ALR 564.

15.147 The civil liability legislation in the majority of Australian

jurisdictions prohibits the awarding of interest on non-pecuniary damages:
Civil Liability Act 2002 (NSW) s 18 (non-economic loss and gratuitous
services); Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 29
(non-pecuniary losses and gratuitous services); Civil Liability Act 2003 (Qld)
s 60 (general damages and gratuitous services); Civil Liability Act 1936 (SA) s
56 (non-economic and future loss); Supreme Court Act 1935 (WA) s 32(2)
(general damages).

The Award
15.148 The date of the verdict is the proper date to assess damages:
O’Brien v McKean (1968) 118 CLR 540.

Costs
15.149 The successful party’s legitimate expenses incidental to his or her
legal action are paid, in general, by the unsuccessful party. Costs in actions at
common law have an ancient history and were first awarded only to
successful plaintiffs in the 13th century under the Statute of Gloucester. It was
not until the 16th century that defendants who were successful became
entitled to costs.
Legislation has been introduced to regulate legal costs in personal injuries
litigation. See, for example, Civil Law (Wrongs) Act 2002 (ACT) Ch 14; Legal
Profession Uniform Law Application Act 2014 (NSW) ss 61, 62; Personal
Injuries Proceedings Act 2002 (Qld) s 56.

[page 421]

Taxation
15.150 An award of damages for personal injury, either as a lump sum or
under a structured settlement (see 15.36), is not considered as income for the
purposes of taxation: Atlas Tiles Ltd v Briers (1978) 144 CLR 202; 21 ALR 129;
Groves v United Pacific Transport Pty Ltd [1965] Qd R 62.
Any interest awarded as part of a plaintiff’s damage is classified as income
and is therefore taxable: Whitaker v Federal Commissioner of Taxation (1996)
Aust Torts Reports ¶81-400. This is because, ‘[t]he reason for awarding
interest is to compensate the plaintiff for having been kept out of money
which theoretically was due to him at the date of his accident’: Thompson v
Faraonio (1979) 24 ALR 1 at 7 (UKPC).

Appeals on damages
15.151 The mere fact that the award is particularly high does not warrant
interference on appeal: Diamond v Simpson (No 1) (2003) Aust Torts Reports
¶81-695. The only proper way of deciding whether a global award is too high
or too low is by assessing the separate items: Keefe v R T & D M Spring Pty
Ltd [1985] 2 Qd R 363. In Calder v Boyne Smelters Ltd [1991] 1 Qd R 325, it
was explained:
Clearly, the assessment of damages is an area where different minds may properly come to
different views. The assessment of damages for personal injuries involves “the exercise of a form
of judicial discretion” (per Dixon J. Lee Transport Co Ltd v Watson (1940) 64 CLR 1 at 13; Miller
v Jennings (1954) 92 CLR 190 at 195–196 and Moran v McMahon (1985) 3 NSWLR 700 at 717–
723).

However, the judgment is a global award to compensate for all the detriments suffered and it is
made only once by the payment of one lump sum. Thus, although an assessing judge may
allocate particular sums to particular heads of detriment and express them in his reasons, the
judgment does not constitute a series of awards under particular heads, nor does it constitute a
mere aggregation of the sums separately allocated (see Gamser [Gamser v The Nominal
Defendant (1977) 136 CLR 145] per Stephen J. at 149–150 with whom Gibbs J. agreed at 148 and
Paul v Rendell (1981) 55 ALJR 371 (P.C.) at 376–377). It is the allocation of particular sums
which discloses the process of reasoning which led to the exercise of judicial discretion which
itself is given effect to in the final award in the form of a single lump sum (Wilson v Peisley
(1975) 50 ALJR 207 at 214 per Mason J. with whom Gibbs J. agreed; Gamser per Gibbs J. at 148
and Stephen J. at 149–150; Sharman at 572 per Gibbs and Stephen JJ. with whom Jacobs J.
agreed as to the approach of an appellate court; Dessent v The Commonwealth (1977) 51 ALJR
482 at 486–487 per Mason and Aickin JJ.)

What is appealed against is the total sum awarded ie the discretionary judgment as reflected in
the lump sum award. Whether the appeal is successful depends upon the answer to one ultimate
question. That question is whether the appellant has demonstrated error which has led to an
assessment which is outside the limits of what a sound discretionary judgment could reasonably
adopt.

15.152 In Queensland, proceedings based on claims for personal injury

damages are decided by a court sitting without a jury: Civil Liability Act 2003
(Qld) s 73. In all other Australian jurisdictions jury trials are permitted.

[page 422]

Where a judge is sitting alone, the verdict must be so excessive or

inadequate as to be beyond reasonable discretionary judgment: Miller v
Jennings (1954) 92 CLR 190. An appeal court may have less reservations in
upsetting the verdict of a judge sitting alone than a jury verdict (Sharman v
Evans (1977) 138 CLR 563; 13 ALR 57; Hodges v Frost (1984) 53 ALR 373),
but it must be shown that the judge acted on an ‘error of principle or
misapprehension of the facts’ or that the judge made ‘a “wholly erroneous
estimate” of the damages suffered’: Sutherland Shire Council v Major [2015]
NSWCA 243 at [40], citing Precision Plastics Pty Ltd v Demir (1975) 132 CLR
362 at 369 per Gibbs CJ.
A jury’s verdict will only be upset on appeal if the appellate court comes to
a positive conclusion that the verdict was beyond the bounds of a reasonable
assessment, either because it was too small or too excessive: Arthur Robinson
(Grafton) Pty Ltd v Carter (1968) 122 CLR 649. In Amaca Pty Ltd v King
(2011) 35 VR 280, the appellant argued on appeal that the jury’s award of
$730,000 for pain and suffering and loss of amenities was so high that no
reasonable jury could have arrived at it. Evidence was given of other awards
for pain and suffering and loss of amenities for the victims of mesothelioma,
demonstrating that it was significantly higher than any other award. The
Court of Appeal held that the award should not be disturbed:
… over the last 10–20 years, awards of damages have increased significantly; not just in personal
injuries cases, but also in other areas of litigation: at [180].

Given the considerations to which we have referred, and bearing in mind that judgments about
damages are not to be overborne by what other minds have judged right and proper for other
situations, (Plantet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 at 125) we are not persuaded
that the sum of $730,000 for pain and suffering and loss of enjoyment of life which the jury
awarded in this case is beyond what a reasonable jury properly instructed and with all due
attention to the evidence could arrive at: at [184].

Further Reading
R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis
Butterworths, Sydney, 2013, Ch 11.
 H Luntz, Assessment of Damages for Personal Injury and Death, 4th ed,
LexisNexis Butterworths, Sydney, 2002.
H Luntz, D Hambly, K Burns, J Dietrich and N Foster, Torts: Cases and
Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2012, Ch 8.
A Mason, ‘The Recovery and Calculation of Economic Loss’ in N J
Mullany (ed), Torts in the Nineties, LBC Information Services, Sydney,
1997.
A Phang and P W Lee, ‘Restitutionary and Exemplary Damages
Revisited’ (2003) 19 JCL 1.
N Witzleb and R Carroll, ‘The Role of Vindication in Torts Damages’
(2009) 17 TLJ 16.

1. See A Phang and P W Lee, ‘Restitutionary and Exemplary Damages Revisited’ (2003) 19 JCL 1.
2. See N Witzleb and R Carroll, ‘The Role of Vindication in Torts Damages’ (2009) 17 TLJ 16 at 22.
3. Commonwealth of Australia, Review of the Law of Negligence — Final Report (the Ipp Report),
October 2002, available at
<http://www.treasury.gov.au/ConsultationsandReviews/Reviews/2002/Review-of-the-Law-of-
Negligence>.
4. Commonwealth of Australia, Review of the Law of Negligence — Final Report (the Ipp Report),
October 2002, available at
<http://www.treasury.gov.au/ConsultationsandReviews/Reviews/2002/Review-of-the-Law-of-
Negligence> at [13.65].
5. Commonwealth of Australia, Review of the Law of Negligence — Final Report (the Ipp Report),
October 2002, available at
<http://www.treasury.gov.au/ConsultationsandReviews/Reviews/2002/Review-of-the-Law-of-
Negligence>.
[page 423]
 Chapter 16

Wrongful Death

1 Introduction
16.1 Under the common law, the death of a victim of a tort did not give
rise to compensation to the family of the deceased (Baker v Bolton (1808) 1
Camp 493; 170 ER 1033) nor could a cause of action survive death. If the
plaintiff or defendant died, the death extinguished any right of action — the
Latin maxim being action personalis moritur cum persona. Therefore, a cause
of action in tort could not vest in the estate of the deceased for the benefit of
the estate. The relatives had a limited right of action where the death arose
from breach of contract: Jackson v Watson & Sons [1909] 2 KB 193. In
Barclay v Penberthy (2012) 246 CLR 258; 291 ALR 608, the High Court
confirmed that the rule in Baker v Bolton remained as part of the Australian
common law.

16.2 Legislation now provides for compensation in these situations. If a

person dies from a tortious act of another, their estate may recover the losses
suffered (see 16.51) and the dependants of the deceased may seek
compensation: see 16.3. As it is common for the beneficiaries of the
deceased’s estate to also be dependants of the deceased, the legislation
specifies which damages may and may not be recovered to ensure there is no
overlap between the two actions as they are two separate causes of action:
WorkCover Queensland v Amaca Pty Ltd (2010) 241 CLR 420 at [34] and
[38].
 2 Compensation to Relatives
16.3 Following the rapid increase in industrial and railway fatalities in the
middle of the 19th century, the Fatal Accidents Act 1848 (UK) (Lord
Campbell’s Act), was enacted to provide for compensation to a limited class
of persons for the death of a relative by a tortious act.
Similar legislation was adopted in Australia, the current legislation being:
Civil Law (Wrongs) Act 2002 (ACT) s 24;
Compensation to Relatives Act 1897 (NSW) s 3(1);
Compensation (Fatal Injuries) Act 1974 (NT) s 7;
Civil Proceedings Act 2011 (Qld) s 64;
Civil Liability Act 1936 (SA) s 23;
Fatal Accidents Act 1934 (Tas) s 4;

[page 424]

Wrongs Act 1958 (Vic) s 16; and

Fatal Accidents Act 1959 (WA) s 4.
An illustration of the common Australian provision is provided by s 4 of
the Fatal Accidents Act 1959 (WA), although the terms differ under various
enactments:
Where the death of a person is caused by a wrongful act, neglect or default, and the act, neglect
or default is such as would (if death had not ensued) have entitled the party injured to maintain
an action and recover damages in respect thereof, the person who would have been liable if
death had not ensued is liable to an action for damages, notwithstanding the death of the person
injured, and although the death was caused under such circumstances as amount in law to a
crime.

16.4 The words ‘wrongful act neglect or default’ used in the legislation are
not limited to torts and extend to breaches of contract: Woolworths Ltd v
Crotty (1942) 66 CLR 603 (breach of implied term of contract that faulty light
bulb was reasonably fit for its purpose). ‘Neglect’ would include negligence
and ‘default’ means not doing what is reasonable in the circumstances where
some duty exists: Re Young and Harston’s Contract (1885) 31 Ch D 168.

16.5 In Queensland, the provision has been re-enacted in the Civil

Proceedings Act 2011 and rephrased in more modern language:
64 Liability for a death
(1) This section applies if—
(a) a death is caused by a wrongful act or omission, whether or not an offence; and
(b) the act or omission would, if death had not resulted, have entitled the deceased
person to recover damages in a proceeding for personal injury.
(2) The person who would have been liable if the death had not resulted is liable for
damages despite the death and whether or not the death was caused by circumstances
that were an offence.
(3) In a proceeding under this part, a court may award to the members of the deceased
person’s family the damages it considers to be proportional to the damage to them
resulting from the death.

16.6 To bring an action for the death of another, it must be proven that:
if they had not died, the deceased could have brought an action in
relation to their injury and they would have recovered damages;
there is a causal link between the defendant’s wrongful conduct and
the death; and
the claimants are dependants of the deceased as defined by the
legislation.

Right of Action
16.7 An action cannot be brought unless the deceased could have brought
an action at the time of death: British Electric Railway Co Ltd v Gentile [1914]
AC 1034; Nunan v Southern Railway Co [1924] 1 KB 223; Partridge v Chick
(1951) 84 CLR 611. The wrongful act, omission, neglect or default need not
be the sole cause of death, but it must provide a right to maintain an action
and recover damages had the deceased not died.

[page 425]

16.8 The deceased will not have had a right of action or recovered damages
if:
a complete defence would have been available to the defendant had the
deceased survived, for example the deceased voluntarily assumed the
risk (Williams v Birmingham Battery and Metal Co [1899] 2 QB 338;
Murphy v Culhane [1977] 1 QB 94);
the relevant time limitation period had expired;
the deceased contracted out of the benefit (Birss v R [1923] NZLR
1058; Central Queensland Speleological Society Inc v Central
Queensland Cement (No 1) [1989] 2 Qd R 512);
the deceased had accepted compensation before their death, thereby
satisfying the cause of action through accord and satisfaction (Read v
Great Eastern Railway Co (1868) LR 3 QB 555); or
the deceased recovered damages for personal injuries prior to death:
Brunsden v Humphrey (1884) 14 QBD 141.

16.9 The Northern Territory legislation differs from the other jurisdictions
by providing that a payment made in pursuance of a settlement, release or
judgment that is within six months of the incident, is no bar to an action by
dependants, but is to be taken into account when assessing damages in an
action on behalf of the dependants: Compensation (Fatal Injuries) Act 1974
(NT) ss 7(2) and 10(5).

16.10 If procedural requirements have not been complied with at the time
of death, this does not prevent an action under the legislation: Harding v
Lithgow Municipal Council (1937) 57 CLR 186 (deceased failing to give
required notice of action to council did not prevent dependants from
bringing an action). This is because action under the legislation is
independent of that which the deceased would have had, had he or she lived:
Johnson v Deep Level Gold Mines of Charters Towers Ltd [1903] St R Qd 190.

Causation
16.11 Both the injury and death must have been caused by the defendant.
This will extend even to cases where, under normal circumstances, the rules
as to remoteness of damage would render it too remote as the compensation
to relatives legislation does not apply only to tortious actions.

16.12 In Haber v Walker [1963] VR 339, the plaintiff widow brought an

action against the defendant, under the Victorian legislation, for damage
suffered by her as a result of the death of her husband, caused by the
negligence of the defendant in a motor vehicle accident. The accident caused
disfigurement and incapacitating injuries as well as damage to his brain.
Subsequently, he suffered from anxiety, depression and aggression. He was
seen by psychiatrists and might well have qualified for certification as insane.
He eventually committed suicide by hanging himself. The jury found that the
accident was caused by the defendant’s negligence and that death was also
caused by the accident, although it was not reasonably foreseeable. The trial
judge entered judgment for the plaintiff. A majority of the Full Court
dismissed an appeal, confirming that the test under the legislation is whether

[page 426]

the death was ‘caused’ by the defendant’s wrongful act, default or neglect, not
that it be reasonably foreseeable.
16.13 However, in Lisle v Brice [2002] 2 Qd R 168, the Queensland Court
of Appeal preferred the dissenting judgment of Hudson J in Haber v Walker.
In Lisle v Brice, the deceased was injured in a motor vehicle accident caused
by the negligence of the appellant. Although the deceased’s injuries were
minor, he developed depression within a few weeks of the accident, the
condition persisting until he committed suicide by hanging himself 3¼ years
later. The respondent’s widow claimed damages for herself and children
pursuant to s 17 of the Supreme Court Act 1995 (Qld) (now Civil Proceedings
Act 2011 (Qld) s 64). The trial judge found that the deceased’s depression
would not have occurred but for the injuries caused by the accident. Finding
that the depression was the cause of the suicide, the trial judge allowed the
claim for wrongful death. On appeal, it was argued that the principle of
remoteness of damage applied to the action and that death as an injury on the
facts was not foreseeable. The Queensland Court of Appeal held that a claim
under the Queensland legislation could only be maintained if the death was a
consequence of the negligence of the defendant which was reasonably
foreseeable. However, on the facts before it, the court could find no reason for
overturning the findings of the trial judge that the suicide was a consequence
of the depression and was foreseeable.

16.14 The egg-shell skull rule applies to wrongful death actions; the fact
that the deceased may have been vulnerable to suffering depression is
irrelevant when assessing damages: Lisle v Brice [2002] 2 Qd R 168 at 186.

16.15 See also Lyle v Soc (2009) 38 WAR 418, where the court held that
there was no causative link between the death of the respondent’s wife and
the appellant’s negligent driving. It was stated that the death from an
overdose was not the reasonably foreseeable consequence of a minor traffic
accident two years previously. Steytler P held (at [42]):
… ordinary commonsense and experience would deny that the 1999 accident materially
contributed to the accidental taking of a large overdose of analgesics, some 2 years later, by a
person who had been using analgesic medication for many years prior to the accident. It also
seems to me that the death, through the taking of the overdose by a person who had been a long-
 standing user of analgesic medication, was caused solely by the abuse of that medication, in
circumstances in which the abuse (as opposed to the taking of the medication) was not directly
or indirectly contributed to by the negligence of the appellant.

Dependants
16.16 The legislation specifies who may seek damages and the language
varies; for example, the Victorian legislation refers to dependants (Wrongs
Act 1958 (Vic) s 17(2)), the Western Australian statute refers to relatives
(Fatal Accidents Act 1959 (WA) s 3, Sch 2) and in Queensland the Act refers
to members of the deceased’s family: Civil Proceedings Act 2011 (Qld) s 62.
Whichever term is used, damages are only awarded if the death of the
deceased resulted in loss to that person, that is, a loss of dependency: see
16.20.

16.17 In all jurisdictions, dependant includes the spouse of the deceased.

Spouse or equivalent terms are defined to include a de facto spouse, including
a same sex spouse:

[page 427]

Civil Law (Wrongs) Act 2002 (ACT) s 23(a); Legislation Act 2001 (ACT) s
169; Civil Unions Act 2006 (ACT) s 5; Compensation to Relatives Act 1897
(NSW) ss 4(2) and 7(4); Interpretation Act 1987 (NSW) s 21C; Compensation
(Fatal Injuries) Act 1974 (NT) s 4(2)(a); Interpretation Act 1978 (NT) s 19A;
De Facto Relationships Act 1991 (NT) s 3A(3); Civil Proceedings Act 2011
(Qld) ss 63 and 67(7); Acts Interpretation Act 1954 (Qld) ss 32DA(5) and 36;
Civil Liability Act 1936 (SA) s 3; Family Relationships Act 1975 (SA) ss 11
and 11A; Fatal Accidents Act 1934 (Tas) s 3; Relationships Act 2003 (Tas) ss
4-6; Fatal Accidents Act 1959 (WA) s 6(1), Sch 2, cl (h); Interpretation Act
1984 (WA) s 13A(3).
16.18 Dependants may also include a parent and a child of the deceased
and in most jurisdictions this extends to persons in loco parentis: Civil Law
(Wrongs) Act 2002 (ACT) s 23(c) and (e); Compensation to Relatives Act
1897 (NSW) s 7(1); Compensation (Fatal Injuries) Act 1974 (NT) ss 4(2)(c)
and (d); Civil Proceedings Act 2011 (Qld) s 62(b) and (d); Fatal Accidents Act
1959 (WA) s 3(1), Sch 2, cl 1(d) and (e). There is no equivalent in the
legislation of South Australia or Tasmania.

16.19 In some jurisdictions, dependants may also include grandchild,

brother, sister and step-brother or step-sister of the deceased: see, for
example, Compensation to Relatives Act 1897 (NSW) s 7(1); Civil
Proceedings Act 2011 (Qld) s 62; Fatal Accidents Act 1959 (WA) Sch 2, cl 1.

16.20 To be entitled to compensation, the dependant must prove not only

that they are a dependant as defined by the Act, but also that he or she has
suffered pecuniary loss, or has lost the reasonable expectation of a pecuniary
advantage, due to the wrongful death of the deceased. As explained by
McHugh J in De Sales v Ingrilli (2002) 212 CLR 338; 193 ALR 130 at [91],
damages are awarded ‘for the chance that the deceased would have provided
the relative with financial support or its equivalent in the future’.
Therefore, there must be evidence of dependency upon the deceased, not
merely a relationship. For example, in Campbell v Li-Pina (2007) 47 MVR
279, the appellant sought damages for the death of her de facto husband.
However, the evidence was that, at the time of death, there was no net
pecuniary benefit in the appellant’s favour; in fact, the evidence was that it
was the deceased who was dependent upon the appellant. At the time of
death, the deceased was setting up a new business. The court held that, on the
balance of probabilities, there was no evidence that had the deceased not died
the appellant would have received a net pecuniary benefit from the
relationship.

16.21 Where the deceased is a child, a claim for compensation by parents

will fail unless the child had made a contribution to the parents’ welfare
(pecuniary or services) and was expected to continue such contributions: Taff
Vale Railway Co v Jenkins [1913] AC 1. In Preti v Sahara Tours Pty Ltd (2008)
22 NTLR 215; [2008] NTCA 2, a wrongful death claim was made by the
parents of the deceased. The evidence was that the deceased had lived with his
parents, at no cost, in Geneva, Switzerland, and assisted, without pay, in the
family patisserie business as a pastry chef. The parents claimed for the loss of
the gratuitous services provided by their son as a pastry chef, as well as the
bookkeeping and other administrative work he carried out for the business.
The Court of Appeal held that the parents had suffered a loss as, although
their other son had moved in with them to assist

[page 428]

in the patisserie, they paid him wages. The evidence was that the deceased
would have continued to assist his parents until the business was sold to him
upon their retirement.

16.22 It is not necessary for a claimant to actually have been wholly

dependent upon the deceased, as long as they can prove a reasonable
expectation of benefit. Therefore, the private fortune of the claimant is
irrelevant since the primary consideration is dependency: Shiels v Cruikshank
[1953] 1 WLR 533; [1953] 1 All ER 874.

16.23 The dependency must have arisen from the familial rather than
some other relationship: Burgess v Florence Nightingale Hospital for
Gentlewomen [1955] 1 QB 349; Chief Commissioner of Railways and
Tramways (NSW) v Boylson (1915) 19 CLR 505; Malyon v Plummer [1964] 1
KB 330; Barnett v Cohen [1921] 2 KB 461; Baker v Dalgleish Steam Shipping
Co [1922] 1 KB 361. Therefore, if the deceased and the dependant were also in
a commercial relationship, a distinction must be made between benefits
arising from the familial relationship and those from the commercial
relationship. See Schimke v Clement (2011) 58 MVR 390.

Executor Brings the Action

16.24 The statutory right of action lies against the party who would have
been liable at the suit of the deceased had he or she lived: Nominal Defendant
v Taylor (1982) 154 CLR 106; 41 ALR 244.

16.25 Only one action is brought on behalf of the dependants against the
defendant, generally in the name of the executor or administrator of the
deceased: Compensation to Relatives Act 1897 (NSW) ss 4(1), 5;
Compensation (Fatal Injuries) Act 1974 (NT) s 8; Civil Proceedings Act 2011
(Qld) s 65(1), (2); Civil Liability Act 1936 (SA) ss 24, 25(1); Fatal Accidents
Act 1934 (Tas) ss 5, 6; Wrongs Act 1958 (Vic) ss 17(1), 20(1); Fatal Accidents
Act 1959 (WA) ss 6(1B), 7. There is no similar provision in the Australian
Capital Territory.
Where the deceased has no executor or administrator or no action is
brought within six months of the death, the persons for whose benefit the
action would otherwise be brought may themselves be given the right to
commence the action: Compensation to Relatives Act 1897 (NSW) s 6B(1);
Compensation (Fatal Injuries) Act 1974 (NT) s 13(1); Civil Liability Act 1936
(SA) s 27(1); Fatal Accidents Act 1934 (Tas) s 8(1); Wrongs Act 1958 (Vic) s
18; Fatal Accidents Act 1959 (WA) s 9(1).
In Queensland, the proceeding may be brought by the personal
representative or by one or more members of the deceased’s family: Civil
Proceedings Act 2011 (Qld) s 65(2).

Damages that May be Claimed for Wrongful Death

16.26 The aim of the legislation in respect of wrongful death is to
compensate dependants for the loss of the contribution by the deceased for
their support. To be entitled to compensation, the loss must be more than
nominal (Pym v Great Northern Railway Co (1862) 2 B & S 759; 121 ER 1254)
and not merely speculative: Barnett v Cohen [1921] 2 KB 461. See Schimke v
Clement (2011) 58 MVR 390 at [90]–[91].
The loss compensated for may be pecuniary, as in financial assistance or
support, or non-pecuniary, as in providing care. See Schimke v Clement
(2011) 58 MVR 390 at [90]–[91].

[page 429]

Pecuniary loss
16.27 Compensation for the pecuniary loss is damages representing the
financial contribution to the household by the deceased. The pecuniary loss
may be actual or prospective: Berry v Humm & Co [1915] 1 KB 627. Loss of
income contributed to the support of the dependants and other pecuniary
losses stemming from the death are recoverable: Robertson v Robin [1967]
SASR 151.
Section 66 of the Civil Liability Act 1936 (SA) allows compensation for loss
if the deceased and their spouse or domestic partner were jointly engaged in
business and the business is impaired or ceases.

Non-pecuniary loss
16.28 A claim for non-pecuniary loss is allowed if the loss is capable of
being assessed in monetary terms. In Kepa v Lessbrook Pty Ltd (in liq) [2012]
QSC 311 at [40], the court held that the hunting and gathering activities of
the deceased which had provided his family with food was a loss of service
that could be compensated.

16.29 Damages may be claimed for the loss of services to the extent that
the deceased contributed to services within the household. In McKenna v
Avior Pty Ltd [1981] WAR 255 at 257, it was explained.
It is well established, also, that only injuries capable of evaluation in monetary terms can found
claims for damages under the [Lord Campbell legislation] and the various enactments modelled
thereon. The loss, however, need not be a monetary loss: a loss of services capable of being
valued in pecuniary terms will suffice as also will the reasonable expectation at time of death of
future financial benefits or the reasonable expectation of services in the future capable of
evaluation in monetary terms.

In Seymour v British Paints (Australia) Pty Ltd [1967] Qd R 227 at 230,

Gibbs J noted:
Domestic services do in fact have a pecuniary value which is capable of assessment, and … the
deprivation of services is just as much a pecuniary loss as the deprivation of income.

The High Court, in Nguyen v Nguyen (1990) 169 CLR 245; 91 ALR 161,
held that loss of domestic services formerly provided by the deceased had a
pecuniary value, capable of assessment, and should be included in a claim
under actions under Australian legislation equivalent to Lord Campbell’s Act.
In that case, the plaintiffs (a father and his two young children) claimed
damages under the Queensland legislation in respect of the death, in a motor
vehicle accident, of their wife and mother, who had provided child care and
household services. The plaintiff widower had not engaged anyone to
perform household services for him and the two children and had no
intention of doing so. The decision of the Full Court of the Supreme Court of
Queensland not to allow recovery was overruled by the High Court,
extending the principle established in Griffiths v Kerkemeyer (1977) 139 CLR
161; 15 ALR 387 to claims by dependants under the wrongful death
legislation.
In Griffiths v Kerkemeyer, it was held that the plaintiff, who was rendered a
quadriplegic as the result of the negligence of the defendant, was entitled to
recover, by way of damages, a sum representing the value of nursing and
other services gratuitously provided for

[page 430]
him in the past and to be provided in the future by his fiancé and members of
his family. As Dawson, Toohey and McHugh JJ pointed out in their joint
judgment in Nguyen:
Griffiths v Kerkemeyer has nothing to say about a claim under Lord Campbell’s Act for damages
for the loss of domestic services. As we have said, such a claim is not related to need. A husband
claiming for the loss of housekeeping services by reason of the death of his wife may have no
need of those services in that he may be able to perform them himself. But if he has suffered the
loss he is entitled to recover for it … it does not matter whether he intends to use the damages to
replace the services or not: at CLR 264; ALR 175.

Some jurisdictions have imposed requirements upon claims for the

gratuitous services that were or would be provided by the deceased: see, for
example, Wrongs Act 1958 (Vic) s 19A.

16.30 Solatium In South Australia and the Northern Territory, an amount

for the grief and suffering of the dependant caused by the death (solatium)
may be recovered: Civil Liability Act 1936 (SA) ss 28 and 29; Compensation
(Fatal Injuries) Act 1974 (NT) s 10(3)(f).
As the claims under the legislation are based on dependency, the deceased’s
own pain and suffering and the nature of the personal injuries prior to death
are irrelevant.

16.31 Loss of consortium In the Northern Territory, Queensland and

South Australia, a claim may be made for loss of consortium (sharing of
companionship, lives, including sexual intercourse (Toohey v Hollier (1955)
92 CLR 618)): Compensation (Fatal Injuries) Act 1974 (NT) s 10(3)(c); Civil
Liability Act 2003 (Qld) s 58(1)(a); Civil Liability Act 1936 (SA) s 65. In
Victoria and Western Australia, the law as to loss of consortium has not been
changed.
Claims for loss of consortium have been abolished in the other
jurisdictions: Civil Law (Wrongs) Act 2002 (ACT) s 218; Law Reform
(Marital Consortium) Act 1984 (NSW) s 3; Civil Liability Act 2002 (Tas) s
28D.
Assessment of Damages for Wrongful Death
16.32 A court must determine the amount of damages that represents the
value of the loss to each dependant from the date of death until the date of
trial or settlement as well as the anticipated future loss. Events between death
and trial must be taken into account, as well as future probable events, for the
purposes of assessing dependency.

Relevant factors
16.33 Pecuniary support from deceased In balancing the loss and gain
to the claimant resulting from the death of the relative, the deceased’s life
expectancy and actual prospective net earning capacity are relevant: Lincoln v
Gravil (1954) 94 CLR 430; Matthew v Flood [1938] SASR 312; [1939] SASR
389; (1939) 62 CLR 750; [1940] SASR 48.
In Parker v Commonwealth (1965) 112 CLR 295, the deceased’s net wage
prior to his death was taken into account as well as his prospects for
promotion and what he may have earned if he had reached the top grade of
his position within the navy. In Hanlon v Hanlon [2006] TASSC 1, the court
considered the deceased’s age, work history, the industry in which he worked
and the average retirement age for the type of work he was engaged in.

[page 431]

In French v QBE Insurance (Australia) Ltd (2011) 58 MVR 214, the

deceased was a painter and decorator. The wife claimed that he was earning
in addition to his wages substantial undisclosed amounts from cash jobs. The
court held that as there was no evidence of these cash amounts, the deceased’s
earnings and prospective earning capacity were based upon the records,
including the deceased’s income tax returns from the previous years.

16.34 Period and extent of dependency The likely period and the extent
of dependency are also relevant: Scholefield v Bates [1958] SASR 317. In
assessing the period and extent of the dependency, the court looks beyond
just the age of the dependants. In De Sales v Ingrilli (2002) 212 CLR 338; 193
ALR 130 at [14] it was stated:
The court assesses what benefits the deceased would have brought to the family, in the form of
either income or the provision of services. The court determines the share of that benefit that
would have been enjoyed by a relative during the deceased’s lifetime. And the court determines
the period for which a relative could reasonably have expected to receive the benefit. For
example, a surviving spouse may say that it was reasonable to expect to receive a benefit
measured as a share of the deceased’s income until the deceased’s expected age of retirement. A
child of the deceased may reasonably expect to receive such a benefit until the child reaches an
age of expected financial independence.

In Hanlon v Hanlon [2006] TASSC 1, the claim for damages was made by
the widow and two children of young age. As to the future dependency of the
widow, the court was provided with evidence of the stability of the marriage
as well as her work history and experience. In respect of the children, their
age, their ability at school and evidence of a lack of tertiary education in the
family history were relevant.

Indemnity principle
16.35 In assessing the damages for each dependant, the usual principles of
compensatory damages apply: see Chapter 15. To ensure that a dependant is
not over-compensated (the indemnity principle), certain gains received by
dependants upon the death of the deceased must be taken into account and
set off against the damages awarded. As explained in Preti v Sahara Tours Pty
Ltd (2008) 22 NTLR 215; [2008] NTCA 2 at [26]:
The principles applicable to such a claim [wrongful death] are not controversial. They were
established by the High Court in Horton v Byrne (1956) 30 ALJ 583 and repeated in Nguyen v
Nguyen (1990) 169 CLR 245. The measure of such damages is to reflect the balance of the loss,
reduced to terms of money, which the deceased’s relatives incur in consequence of his death
after deducting the pecuniary gains which accrue to them from that event. The damages are
confined to compensation for the loss of material benefits or of the reasonable prospect of such
benefits occasioned by the death. If, by reason of the death, the claimant is better off than before
the death there is no cause of action. It is the net loss, on a balance of losses and gains, that may
be recovered as damages.
16.36 The general principle is that damages should be calculated by
reference to a reasonable expectation of benefit or support had the deceased
lived, with reference to any gains and losses of the dependant: Parker v
Commonwealth (1965) 112 CLR 295; Nance v British Columbia Electric
Railway Co Ltd [1951] AC 601; [1951] 2 All ER 448; Taylor v O’Connor
[1971] AC 115. Therefore, a court must take into account the accelerated
benefit

[page 432]

the dependants are obtaining by the victim’s premature death. As stated in

Public Trustee v Zoanetti (1945) 70 CLR 266 at 277, account must be taken of
‘the pecuniary benefits, arising on [the] death, to which the claimant had a
reasonable expectation, whether as a right or otherwise’.

16.37 As the dependants are receiving damages based upon possible future
events, a discount is made to take into contingencies: De Sales v Ingrilli (2002)
212 CLR 338; 193 ALR 130; Hanlon v Hanlon [2006] TASSC 1: see Chapter
15. A general allowance is made for the vicissitudes of life and specific likely
events are also taken into account. In De Sales v Ingrilli (2002) 212 CLR 338;
193 ALR 130 at [15], the example was given that the dependant may suffer an
existing illness, which means there is a likelihood they will have a premature
death.

16.38 New relationships If a new relationship (marriage or de facto

relationship) has been formed by the spouse, the court will take this into
consideration and discount the award to take into account the benefits
flowing from that relationship: Moore v Lamb (1994) Aust Torts Reports ¶81-
295. In Campbell v Li-Pina (2007) 47 MVR 279, the court held that there must
be some existing financial benefit arising from the relationship, before a court
could take it into account when assessing the damages.
 Previously, a widow’s prospects for remarrying had to be considered as an
individual item in the assessment of dependency: Williams v Usher (1955) 94
CLR 450; Jones v Schiffmann (1971) 124 CLR 303. In Jones v Schiffmann, a
majority of the High Court made a number of observations on the extent to
which damages recoverable by a widow in a Lord Campbell’s Act claim
should be affected by remarriage prospects. Relevant factors included age,
appearance, inclination, experience, obligations to children and parents, and
the value of freedom to remarry: per Windeyer J at 306.
However, in De Sales v Ingrilli (2002) 212 CLR 338; 193 ALR 130, the High
Court reconsidered this archaic principle and a majority of 4:3 held that there
should be no separate deduction or an increased reduction for vicissitudes of
life for the prospects of remarriage or re-partnering. Therefore, the surviving
spouse’s prospects of entering into a new relationship are treated as one of the
usual vicissitudes.
In Queensland, Civil Proceedings Act 2011 (Qld) s 67 provides that the
possibility that a surviving spouse, including a de facto spouse, may form a
new relationship should have no effect on the assessment of damages for
wrongful death. However, if the surviving spouse has entered into a new
relationship, this should be taken into account, but it should not be assumed
that the relationship will continue or that the same benefits will be received
by the surviving spouse as were in the previous relationship: s 67(6). In
relation to a claim by a child of the deceased, the fact that the relationship
between the surviving parent and the deceased had ended, or was unlikely to
have continued but for the death, is not relevant to the assessment of
damages: s 68.
In Victoria and the Northern Territory, the legislation provides that there
is no reduction for the prospect of or an actual new relationship: Wrongs Act
1958 (Vic) s 19(2)–(5); Compensation (Fatal Injuries) Act 1974 (NT) s 10(4)
(h).

16.39 Deceased’s estate Benefits received by the claimant from the

deceased’s estate will be set off unless these involve property enjoyed during
the deceased’s lifetime which

[page 433]

continue to be enjoyed by the relatives after death: Darroch v Dennis [1954]

VLR 282; Peipman v Turner [1961] NSWR 252; McCullagh v Lawrence [1989]
1 Qd R 163.

16.40 The courts have held that the matrimonial home should not lead to
a deduction as the surviving partner merely continues to enjoy what they
were already enjoying as a partner: Zordan v Metropolitan (Perth) Passenger
Transport Trust [1963] ALR 513 at 516. Some legislation excludes the
matrimonial home and its contents from consideration: see, for example,
Civil Law (Wrongs) Act 2002 (ACT) s 26(e).

16.41 However, jointly owned assets may be required to be set off. In Black
v Walden (2008) Aust Torts Reports ¶81-950, the court had to consider the
family business arrangements after the death of the respondent’s wife. In that
case, the respondent, the deceased and eldest son ran a dairy farm which was
operated by the respondent and the deceased as a partnership. The couple
also owned a joinery business. The deceased worked part-time in both
businesses. The Court of Appeal disagreed with the trial judge’s decision that
the respondent enjoyed no additional benefit in the assets than he did before
his wife’s death. The court took into account the control the respondent had
over the assets of which he had no expectation of inheriting and the fact that
he now had the freedom to deal with the assets solely.

16.42 Specific payments The legislation sets out specific amounts that do
not affect the award of damages. For example, s 70(1) of the Civil Proceedings
Act 2011 (Qld) provides:
 In assessing damages in relation to liability under this part, the following must not be taken into
account to reduce the damages —
(a) an amount paid or payable on the death of the deceased person under a contract of
insurance;
(b) an amount paid or payable on the deceased’s death under a contract, other than a contract
of insurance, made with a friendly society or other benefit society, or association or trade
union;
(c) an amount paid or payable on the deceased’s death out of a superannuation, provident or
similar fund;
(d) an amount paid or payable on the deceased’s death by way of pension, benefit or allowance
under a law of —
(i) the Commonwealth; or
(ii) any State; or
(iii) another country;
(e) a gratuity in whatever form received or receivable on the deceased’s death.

See also Civil Law (Wrongs) Act 2002 (ACT) s 26; Compensation to
Relatives Act 1897 (NSW) s 3(3); Compensation (Fatal Injuries) Act 1974
(NT) s 10(4); Civil Liability Act 1936 (SA) s 24(2aa); Fatal Accidents Act 1934
(Tas) s 10(1); Wrongs Act 1958 (Vic) s 19(1); Fatal Accidents Act 1959 (WA)
s 5(2).

16.43 It may be possible that a dependant has a cause of action against

another party in respect of the death. A court may look at the damages the
dependant is claiming in that cause of action. In Thornton v Lessbrook Pty Ltd
(t/as Transair) [2010] QSC 308, the claimant was the de facto and fiancé of
the deceased who had died in an aircraft accident. In assessing the

[page 434]

dependency claim the court noted that the plaintiff had commenced an action
in the United States with others against other defendants in relation to the
aircraft accident. As the claim was damages for distress and exemplary
damages, the court observed (at [142]) that:
 In accordance with the principles discussed in Public Trustee v Zoanetti it is inappropriate to
bring into account in an action such as the present claims for distress or consolation, being
heads of damages that are not recoverable in the present proceeding.

Other factors affecting assessment of damages

16.44 Contributory negligence Evidence of contributory negligence on
the part of the deceased may reduce the amount of damages recoverable by
the relatives under the statute: Law Reform (Miscellaneous Provisions) Act
1956 (NT) s 17(2); Compensation (Fatal Injuries) Act 1974 (NT) s 11(1); Law
Reform Act 1995 (Qld) s 10(5); Wrongs Act 1954 (Tas) s 4(4); Law Reform
(Contributory Negligence and Tortfeasors’ Contribution) Act 1947 (WA) s
4(2)(a). In New South Wales, a court may reduce the damages, but is not
compelled to do so: Civil Liability Act 2002 (NSW) s 5T; Law Reform
(Miscellaneous Provisions) Act 1965 (NSW) s 13. In South Australia, a court
is to ‘have regard to any contributory negligence on the part of the deceased
person’: Civil Liability Act 1936 (SA) s 45. In the Australian Capital Territory
and Victoria, the legislation does not allow the damages to be reduced for
contributory negligence on the part of the deceased: Civil Law (Wrongs) Act
2002 (ACT) s 27; Wrongs Act 1958 (Vic) s 26(4).
In Preti v Sahara Tours Pty Ltd (2008) 22 NTLR 215; [2008] NTCA 2, the
damages for wrongful death were reduced to take into account the deceased’s
contributory negligence. The deceased was a tourist on an adventure tour and
died when another member of the tour group swung on a rope over a
waterhole, causing the deceased to dive into the water off the narrow ledge he
was standing on to get out of the way. As he dived, he struck his head on a
submerged object. The Court of Appeal held that the trial judge was correct
in finding that the deceased had been contributorily negligent. Damages were
reduced by 20 per cent to take the deceased’s own lack of care into account.
See also French v QBE Insurance (Australia) Ltd (2011) 58 MVR 214, where
the court held that the damages were not to be reduced. The deceased was
killed when hit by an unknown motor vehicle after being left at the wrong
address by the taxi driver. At the time the deceased was intoxicated. For
failing to safely take the deceased home, the taxi driver was in breach of an
express term of the contract. This was held not to be a duty of care that was
‘concurrent and coextensive with a duty of care in tort’ (definition of ‘wrong’
in Law Reform Act 1995 (Qld) s 5) and therefore the damages in the
dependency claim were not reduced. However, in Schimke v Clement (2011)
58 MVR 340, the damages assessed under the dependency claim were reduced
by 65 per cent to correspond with the court’s finding of the deceased’s
contributory negligence.
For a discussion on apportionment for contributory negligence, see
Chapter 13.

16.45 Statutory limitations Damages claimed for dependency may be

affected by the limitations contained in the civil liability legislation. As such
claims must consider the earnings of the deceased, the restrictions placed
upon loss of earnings may be relevant:

[page 435]

see 15.81. In some jurisdictions, it is clear that the restrictions apply, for
example in Western Australia the relevant provision refers to the Fatal
Accidents Act 1959 and therefore a court must disregard the deceased’s
earnings above three times the average weekly earnings: Civil Liability Act
2002 (WA) s 11(1). See also Civil Law (Wrongs) Act 2002 (ACT) s 98 (refers
to a ‘claim’, which is defined in s 92 to include a dependency claim); Personal
Injuries (Liabilities and Damages) Act 2003 (NT) s 20 (refers to ‘an injured
person’ and s 5 provides that the Act applies in addition to the Compensation
(Fatal Injuries) Act 1974 (NT)); Civil Liability Act 2002 (Qld) s 54 (refers to a
dependency claim); Civil Liability Act 1936 (SA) s 54(3) (expressly applies to
claims brought for the benefit of dependants).
In the other jurisdictions, it is not so clear whether the restrictions apply
and will depend upon interpretation of the relevant provision: see Civil
Liability Act 2002 (NSW) s 12 (refers to ‘the claimant’s gross weekly
earnings’); Civil Liability 2002 (Tas) s 26 (refers to ‘a person’ entitled to
damages under the Fatal Accidents Act 1934 (Tas) and that a court is to
disregard the person’s earnings above the limit); Wrongs Act 1958 (Vic) s 28F
(refers to ‘the claimant’s gross weekly earnings’).
The New South Wales provision was considered by the High Court in
Taylor v Owners Strata Plan No 11564 (2014) 253 CLR 531; 306 ALR 547. The
appellant’s husband was killed and she brought a dependency claim. The
evidence established that the deceased, a private land surveyor, would have
earnt significant income. Section 12(2) of the Civil Liability Act 2002 (NSW)
provides that a court must disregard any amount ‘by which the claimant’s
gross weekly earnings would (but for the injury or death) have exceeded an
amount that is 3 times the amount of average weekly earnings at the date of
the award’.
The New South Wales Court of Appeal agreed with the trial judge’s
decision that the restriction on awards for loss of earning capacity applied to
the appellant’s claim and therefore the deceased’s earnings above the limit
could not be taken into account. This was based upon the reasoning that it
was intended to apply and so in order to give effect to the intention, the
section should be read as if it referred to ‘the claimant’s or the deceased
person’s’ gross weekly earnings. Before the High Court, the appellant argued
that s 12 had not been given its ordinary grammatical meaning and as the
deceased was not ‘the claimant’ the provision did not apply. A majority of the
High Court held that although a court was to have regard to the intent of the
Parliament, it could not introduce words that would expand the operation of
the provision: at [38] citing R v Young (1999) 46 NSWLR 681; Jones v
Wrotham Park Settled Estates [1980] AC 74; [1979] 2 WLR 132; 1 All ER 286.
It was held that:
On no view can the deceased be “the claimant”. To read s 12, in the case of an award under s
12(1)(c), as applying the s 12(2) limitation to the deceased’s gross weekly earnings cannot be
 reconciled with the language that the parliament has enacted. The phrase “the claimant’s gross
weekly earnings” is incapable of identifying the gross weekly earnings of the deceased: at [41].

16.46 If the death arose from a motor vehicle accident, statutory

maximums may also be imposed by the relevant legislation: see, for example,
Transport Accident Act 1986 (Vic) s 93(9) which imposes a maximum of
$500,000 for claims under Pt III of the Wrongs Act 1958 (Vic). In the
Northern Territory, there is no claim under the common law or legislation
for personal injury or death arising from a motor vehicle accident in the
Territory: Motor Accidents (Compensation) Act 1979 (NT) s 5(1).

[page 436]

Interest
16.47 In a fatal accident claim, pre- and post-trial items must be
distinguished so as to allow interest to be awarded upon the pre-trial losses:
State Government Insurance Office (Qld) v Biemann (1983) 154 CLR 539; 49
ALR 247; Wright v West Australian Trustee & Agency Co Ltd [1987] VR 771.

Limitation Period
16.48 The limitation periods vary between the jurisdictions. In the
Australian Capital Territory, the right to bring an action expires upon either
the expiration of six years from the wrongful act or three years from the date
of death, whichever is the later: Limitation Act 1985 (ACT) s 16. In the
Northern Territory, Queensland and Tasmania, it is three years from the date
the action arose: Limitation Act 1981 (NT) s 17; Limitation of Actions Act
1974 (Qld) s 11; Limitation Act 1974 (Tas) s 5(1) and (2). In Victoria, the
action for wrongful death must be brought within six years from the date of
death: Wrongs Act 1958 (Vic) s 20(1). In New South Wales, South Australia
and Western Australia, the limitation period is three years from the date of
death: Limitation Action Act 1969 (NSW) s 19(1)(b); Civil Liability Act 1936
(SA) s 25; Limitation Act 2005 (WA) s 13(2).

16.49 In Hall v WorkCover Queensland [2015] 2 Qd R 88, the appellant

commenced a dependency claim and a claim on behalf of the deceased’s
estate 16 years after the deceased’s death from mesothelioma after exposure to
asbestos. Therefore, at the date of death, the time limitation as imposed by s
11(1) of the Limitation of Actions Act 1974 (Qld) (three years from cause of
action) had expired. However, similar to other Australian jurisdictions,
subsection (2) provides that ‘a right of action relating to personal injury
resulting from a dust-related condition is not subject to a limitation period
under an Act or law or rule of law’: see 14.5. The respondent argued that this
subsection did not apply to dependency claims. The court held that s 11(2) of
the Limitation of Actions Act 1974 (Qld) did include dependency claims, and
referred to with approval Taylor v Owners Strata Plan No 11564 (2014) 253
CLR 531; 306 ALR 547: see 16.45. Muir JA held that the lack of an explicit
reference to death in subsection (2) did not restrict its application due to the
inclusive definition of ‘personal injury’ in s 5 of the Act. Further, there was a
distinct difference in that subsection (2) used the phrase ‘right of action
relating to personal injury’ in comparison to the phrase in subsection (1), ‘an
action for damages for negligence…’. It was held that focusing on the words
led to the conclusion that subsection (2) applied to dependency claims and
applied a ‘blanket exemption from all limitation provisions for any right of
action “relating to” personal injury resulting from a dust related condition’: at
[50].

16.50 All jurisdictions provide for extensions of the period in the

legislation: see Chapter 14.

3 Survival of Causes of Action

16.51 At common law, a cause of action in tort did not survive the death of
either the plaintiff or the defendant. Legislation has provided that causes of
action subsisting against, or vested in, a person shall survive against, or as the
case may be, for the benefit of the estate.

[page 437]

The current Australian legislation is:

Civil Law (Wrongs) Act 2002 (ACT) Pt 2.4;
Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 2;
Law Reform (Miscellaneous Provisions) Act 1956 (NT) Pt II;
Succession Act 1981 (Qld) s 66;
Survival of Causes of Action Act 1940 (SA) s 2;
Administration and Probate Act 1935 (Tas) s 27;
Administration and Probate Act 1958 (Vic) s 29; and
Law Reform (Miscellaneous Provisions) Act 1941 (WA) s 4.
As this chapter is concerned with compensation, the survival of the victim’s
action will be addressed, not the survival of an action against a deceased
defendant’s estate.

16.52 Unlike a claim for wrongful death, where the damages awarded go
to the deceased’s dependants, the damages awarded under the survival of
causes of action legislation go to the deceased’s estate.
Certain personal actions, namely defamation, are excluded by the
legislation.

Damages
16.53 Damages are awarded to compensate the estate of the deceased for
the pecuniary losses arising due to their injury from the time of the injury
until death. Therefore, compensation is awarded for any lost earning capacity,
medical, hospital and related expenses incurred prior to death, including
gratuitous services. The assessment of these damages is subject to any
statutory limitations, for example the threshold requirements for gratuitous
services and the maximum amounts allowed for loss of earning capacity: see
Chapter 15.

16.54 As the damages are to compensate the estate for pecuniary losses,
the assessment excludes any future loss of earning capacity of the deceased
and non-pecuniary loss, such as pain and suffering. This prevents any double
compensation should there be a claim under the Lord Campbell’s Act by any
dependants. An example of the legislation is s 3(1)(a) of the Survival of
Causes of Action Act 1940 (SA) which provides:
Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person,
the damages recoverable for the benefit of the estate of that person -
(a) shall not include damages for -
(i) pain or suffering;
(ii) bodily or mental harm;
(iii) the curtailment of expectation of life;
(iv) the loss of capacity to earn, or the loss of probable future earnings, in respect of the
period for which the deceased person would have survived but for the act or omission
that gave rise to the cause of action.

See also Civil Law (Wrongs) Act 2002 (ACT) s 16(3)(b); Law Reform
(Miscellaneous Provisions) Act 1944 (NSW) s 2(2)(a)(ii) and 2(2)(d); Law
Reform (Miscellaneous Provisions) Act 1956 (NT) s 6(1)(c)(ii) and (iii);
Succession Act 1981 (Qld) s 66(2)(a) and 66(2)(d)(ii);

[page 438]

Administration and Probate Act 1935 (Tas) s 27(3)(c)(ii) and (iii);

Administration and Probate Act 1958 (Vic) s 29(2)(c)(ii) and (iii); Law
Reform (Miscellaneous Provisions) Act 1941 (WA) s 4(2)(d) and (e).

16.55 However, if the deceased’s action was in respect of a dust disease, for
example exposure to asbestos, the legislation provides that non-pecuniary
damages may be claimed if the proceedings were commenced prior to the
death: Civil Law (Wrongs) Act 2002 (ACT) s 16(4); Dust Diseases Tribunal
Act 1989 (NSW) s 12B; Law Reform (Miscellaneous Provisions) Act 1956
(NT) s 6(2); Succession Act 1981 (Qld) s 66(2A) and 66(2B) (does not include
conditions resulting from smoking or use of tobacco products); Survival of
Causes of Action Act 1940 (SA) s 3(2) and 3(3); Administration and Probate
Act 1935 (Tas) s 27(3A) and 27(3B); Administration and Probate Act 1958
(Vic) s 29(2A); Law Reform (Miscellaneous Provisions) Act 1941 (WA) s
4(2a).

16.56 A court may not award exemplary damages: Civil Law (Wrongs) Act
2002 (ACT) s 16(3)(a); 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).

16.57 The legislation requires that the damages be calculated without

reference to any loss or gain to the estate. This means that no set-off is made
for any insurance payments or any other collateral benefits upon death. Also,
any costs associated with the administration of the estate cannot be awarded,
except for the cost of the funeral: Civil Law (Wrongs) Act 2002 (ACT) s 16(3)
(a) and (5); Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 2(2)
(c); Law Reform (Miscellaneous Provisions) Act 1956 (NT) s 6(1)(c)(i);
Succession Act 1981 (Qld) s 66(2)(d)(i); Survival of Causes of Actions Act
1940 (SA) s 3(1)(d); Administration and Probate Act 1935 (Tas) s 27(3)(c)(i);
Administration and Probate Act 1958 (Vic) s 29(2)(c)(i); Law Reform
(Miscellaneous Provisions) Act 1941 (WA) s 4(2)(c).

Limitation Period
16.58 There is no provision in the limitation legislation as to the applicable
period of limitation for the survival of actions. Therefore, the usual limitation
that would have applied had the deceased survived will apply, which is
generally three years from the date the cause of action arose: see Chapter 14.

Further Reading
R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis
Butterworths, Sydney, 2013, Ch 11.
H Luntz, Assessment of Damages for Personal Injury and Death, 4th ed,
LexisNexis Butterworths, Sydney, 2002, Ch 9.
H Luntz, D Hambly, K Burns, J Dietrich and N Foster, Torts: Cases and
Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2012, Ch 9.
[page 439]
 Chapter 17

Service and Family Relations

1 Introduction
17.1 In a number of areas, the law of torts recognises a right to recover
damages by persons who suffer some consequential economic loss without
any physical damage to themselves. Instead, their loss is the result of physical
injury to another with whom the law recognises they have a special
relationship, based upon the proprietorial interest they have in the physical
wellbeing of the victim.
The relationships which give rise to such exceptional rights of action
against wrongdoers who cause personal injury to another are those between:
an employer and employee;
spouses; and
parents and children.
Another similar exceptional area is compensation to relatives in the case of
fatal injury, which is discussed in Chapter 16.

2 Loss of an Employee’s Services

17.2 The early common law recognised a number of actions on the case
which were designed to compensate an employer who was deprived of the
services of an employee by a tort committed by a third party against the
employee. These actions reflect the fact that, in earlier times, the employer, as
master, was regarded as having a proprietorial interest in the servant–
employee.
Two such actions are now virtually obsolete:
enticement (procuring a servant to leave a master), which now falls
within the more general tort of interference with contractual relations
(see 24.38); and
harbouring a servant in circumstances where the servant would have
returned but for the assistance offered by the defendant harbourer:
Jones Bros (Hunstanton) Ltd v Stevens [1955] 1 QB 275.

[page 440]

More important is the action per quod servitium amisit (by reason of which
the services were lost). This action is available to an employer for the loss of
an employee’s services caused by an act of a third party which is prima facie a
tort against the servant: Commissioner for Railways (NSW) v Scott (1959) 102
CLR 392. In Australia, the action is available provided an employer and
employee relationship of the ordinary kind is made out (Commissioner for
Railways (NSW) v Scott) and is not restricted to domestic servants. In
Victoria, the action is not available for injuries due to a motor vehicle
accident: Transport Accidents Act 1986 (Vic) s 93A. The Northern Territory
has abolished claims in respect of motor vehicle and workplace accidents:
Motor Accidents (Compensation) Act 1979 (NT) s 5(1); Work Health Act
(NT) s 52. The action has been abolished in New Zealand and the United
Kingdom.

17.3 In Commissioner for Railways (NSW) v Scott, the Commissioner of

Railways (the Commissioner) employed an engine driver named Rogers. The
defendant, Scott, was riding a motorcycle and attempted to cross a level
crossing in front of a locomotive, driven by Rogers. The efforts of Rogers
contributed to the accident being averted, but Rogers was thrown from the
locomotive and, subsequently, suffered a nervous breakdown. Under the
relevant railways legislation, Rogers was entitled to receive, while absent from
work, not less than his salary and the cost of medical treatment. The
Commissioner sued Scott for the amount which had to be paid to Rogers.
Since Scott was a servant of the Commissioner, and because the relationship
giving rise to a per quod servitium amisit action is not limited to domestic or
menial servants, the Commissioner succeeded. Dixon CJ traced the action
back to medieval times and confirmed:
Once a consideration of medieval times is reached, not only the history of the remedy, but the
known facts as to the course of social changes would almost seem to make it evident that the
remedy could not be confined to the loss of a domestic servant: at 400.

17.4 A director, as such, is not a servant of a company but managing

directors, or directors performing functions akin to those of employees, are
within the scope of the action: Argent Pty Ltd v Huxley [1971] Qd R 331
affirmed (1972) 46 ALJR 432. As Glass and Samuels JJA said in Marinovski v
Zutti Pty Ltd [1984] 2 NSWLR 571 at 587:
We agree with the trial judge that the plaintiff company was entitled to sue for damages for the
loss of the services of its employee [Panizutti] notwithstanding that his services were not of a
menial nature, Commissioner for Railways (NSW) v Scott (1959) 102 CLR 392, and that Panizutti
was an employee of the company for the purposes of an action per quod notwithstanding that he
was its de facto managing director: Mercantile Mutual Insurance Co Ltd v Argent Pty Ltd (1972)
46 ALJR 432; Lee v Lee’s Air Farming Ltd [1961] AC 12.

Service personnel in the army, navy or air force are not employees of the
Crown (Commonwealth v Quince (1944) 68 CLR 227), nor are police
personnel servants of the Crown: Attorney-General (NSW) v Perpetual
Trustee Co Ltd [1955] AC 457. An action is available only in respect of
injuries to an employee and not in a case where the services are terminated as
a result of the employee’s death: Attorney-General (NSW) v Perpetual Trustee
Co Ltd.

17.5 No action lies for the death of an employee: Admiralty Commissioners

v Owners of SS Amerika [1917] AC 38. In Barclay v Penberthy (2012) 246 CLR
258; 291 ALR 608, it was

[page 441]

argued that the per quod action had been absorbed into the tort of negligence,
and that as a tort, modern social and economic relations no longer justified its
existence.
The court held that the per quod action continued to be a separate and
distinct tort (at [37]), and that the tort had evolved from protecting a master’s
property in a servant to protecting the contractual interest: at [40]. Therefore,
the employer could not recover in respect of the loss of services of two of its
deceased employees, but could be compensated in respect of its three injured
employees.

17.6 An employer has no right of action per quod against an employee as a

result of the employee negligently injuring herself or himself in such a way as
to deprive the employer of the employee’s service: Lawrence v Slatcher [1968]
VR 337.

Damages
17.7 Damages recoverable by a master in a per quod action in Australia are
restricted to the pecuniary loss sustained as a result of the loss of services and
other necessary expenditure resulting from injury to the employee, such as
the payment of overtime rates to existing staff or the cost of advertising for
and training a replacement: Sydney City Council v Bosnich [1968] 3 NSWR
725; Attorney-General v Wilson & Horton Ltd [1973] 2 NZLR 238 at 256. In
Barclay v Penberthy (2012) 246 CLR 258; 291 ALR 608, the loss was referred
to as ‘the market value of the services, which will generally be calculated by
the price of a substitute, less the wages the master is no longer required to pay
to the injured servant’ (at [57] per Gleeson CJ, Gummow, Hayne, Crennan
and Bell JJ) and ‘damages be limited to the cost of substitute labour’: at [164]
per Kiefel J.

17.8 As the tort is protecting against the interference with the services of
the employee, the damages do not include all of the consequences that follow
from that interference: Attorney-General v Wilson & Horton Ltd [1973] 2
NZLR 238. Damages are not calculated by reference to a loss of profits:
Mercantile Mutual Insurance Co Ltd v Argent Pty Ltd (1972) 46 ALJR 432;
Barclay v Penberthy; Petchell v Du Pradal [2015] QCA 132 at [35]. Therefore,
the payments by an employer required by statute, an industrial award or
contract cannot be claimed as ‘these outgoings should be ascribed to that
anterior obligation of the employer. These are not consequences which flow
merely from the injury to the servant’: Barclay v Penberthy at [59].
For an example of the assessment of damages in a per quod action, see
Tippett v Fraser (1999) 74 SASR 522.

17.9 In some jurisdictions, the employee’s own contributory negligence

acts to reduce the employer’s damages: Civil Law (Wrongs) Act 2002 (ACT) s
104; Law Reform (Miscellaneous Provisions) Act 1956 (NT) s 18; Law Reform
(Contributory Negligence and Apportionment of Liability) Act 2001 (SA) s
7(3)(a). Various other legislation also modifies the right to damages under a
per quod action: see, for example, Motor Accidents Compensation Act 1999
(NSW) s 142 (no damages for loss of services in respect of a motor vehicle
accident); Civil Liability Act 2002 (Qld) s 58 (no damages for loss unless
employee died or the general damages of the injured employee meet the
prescribed amount, and damages cannot exceed three times average weekly
earnings).

[page 442]
 3 Interference with Domestic Relations
Between Husband and Wife
Loss of Consortium and Servitium
17.10 The action of per quod consortium et servitium amisit allowed a
husband of an injured plaintiff wife to recover damages from the defendant
for the loss of his wife’s consortium and servitium: Curran v Young (1965)
112 CLR 99; Best v Samuel Fox & Co Ltd [1952] AC 716; Toohey v Hollier
(1955) 92 CLR 618; Kealley v Jones [1979] 1 NSWLR 723.

17.11 A wife had no similar action at common law against one who
tortiously injured her husband so as to deprive her of his consortium (Best v
Samuel Fox & Co Ltd), although a wife might be able to claim for loss of
consortium, resulting from her physical injuries, in her own personal action
against the tortfeasor who caused the injuries: Lampert v Eastern National
Omnibus Co Ltd [1954] 1 WLR 1047; Hird v Gibson [1974] Qd R 14.
The particular discriminatory effect of the rule has been rightly criticised.1
Of the two possible responses to the rule, only the Queensland and South
Australian legislatures have taken the step of extending the right of action to
wives. In Queensland, s 13 of the Law Reform Act 1995 gives a wife the same
right to sue for loss of consortium as was previously available to a husband at
common law, although s 58 of the Civil Liability Act 2003 (Qld) places
restrictions on the amount of damages recoverable. The same extension to
wives is recognised in South Australia, pursuant to the Civil Liability Act 1936
s 65.

17.12 The alternate response of abolishing a husband’s right of action has

been legislated in the Australian Capital Territory, New South Wales,
Tasmania and Western Australia: Civil Law (Wrongs) Act 2002 (ACT) s 218;
Civil Liability Act 2002 (NSW) Sch 2, cl 1; Civil Liability Act 2002 (Tas) s
28D; Law Reform (Miscellaneous Provisions) Act 1941 (WA) s 3. In the
Northern Territory and Victoria, the action has been limited: Motor
Accidents (Compensation) Act (NT) s 5; Work Health Act (NT) s 52;
Transport Accident Act 1986 (Vic) s 93.

Seduction, Enticement and Harbouring

17.13 At common law, a husband had a right of action for loss of his wife’s
consortium against a third party who seduced his wife or enticed her to leave
him: Winsmore v Greenbank (1745) Willes 577; 125 ER 1330.
The action for enticement (or alienation of affection) derived from the
anachronistic writ of ravishment at a time when a husband was viewed as
having a proprietorial interest in his wife. A wife had no common law right of
action for the loss of her husband’s consortium because of enticement or
harbouring: Wright v Cedzich (1930) 43 CLR 493; Winchester v Fleming
[1957] 4 All ER 711.

[page 443]

It was not necessary that the third party injured or committed adultery
with the wife: Place v Searle [1932] 2 KB 497. However, if the enticement was
occasioned by the wife’s family, this may have allowed a defence of just cause:
Gottlieb v Gleiser [1958] 1 QB 267n.

17.14 A similar anachronistic action was available to a husband in respect

of the harbouring of his wife by a third party, and although the
Commonwealth legislation does not seek to abolish that right, doubts have
been cast upon its continued existence at common law: Winchester v Fleming
[1957] 4 All ER 711.

17.15 In CSR Ltd v Eddy (2005) 226 CLR 1; 222 ALR 1, Gleeson CJ,
Gummow and Heydon JJ noted that actions per quod consortium amisit, per
quod servitium amisit, and the torts of seduction, enticement and harbouring,
are now sometimes seen as ‘antique’: at [44] citing Burnicle v Cutelli [1982] 2
NSWLR 26 at 31 per Glass JA.

17.16 Section 120 of the Family Law Act 1975 (Cth) abolishes the action of
enticement of a party to a marriage. The torts of seduction and harbouring
have been abolished in some Australian jurisdictions: Civil Law (Wrongs) Act
2002 (ACT) s 210; Civil Liability Act 1936 (SA) s 68; Civil Liability Act 2002
(Tas) s 28E. However, it is extremely rare for these actions to be relied upon
in the other jurisdictions.

Damages
17.17 The damages recoverable by a husband in a successful per quod
action based upon injury to his wife extend to compensation for all practical
domestic disadvantages suffered as a result of the wife’s injuries; for example,
medical and domestic expenses; taking time off work to look after her; and
the reduction in the wife’s ability to provide conjugal support and assistance:
Toohey v Hollier (1955) 92 CLR 618; Lawrence v Biddle [1966] 2 QB 504. It
may also extend to an amount to compensate for impairment of the wife’s
sexual capacity and consequent reduction in the chances of the husband
raising a family, and contribution to a marriage breakup: Pickering v Ready
Mixed Concrete (Queensland) Pty Ltd [1967] QWN 45; Parker v Dzundza
[1979] Qd R 55.

17.18 In Andrewartha v Andrewartha (1987) 44 SASR 1, the South

Australian Supreme Court (in Banco) considered an action by the husband of
a quadriplegic victim of a road traffic accident which sought damages for loss
of consortium, including a loss of servitium. The court held the husband’s
damages were confined to the loss of his wife’s society and for the temporal
losses involved, and for the loss of her services to him as a wife. His pain and
suffering, distress and depression, heartache and sorrow, and the mental,
emotional and spiritual losses which he suffered in the course of his efforts to
care for his wife at home were not, in law, compensable.

17.19 A husband who changes his location to remain near his wife during
her hospitalisation will be able to recover this additional cost as a necessary
expense in mitigation of the loss of consortium: McNeill v Johnstone [1958] 1
WLR 888. Where a husband gives up his job to be near his wife during her
incapacity, but had previously lived in a different locality from her anyway, he
cannot recover his loss of wages as loss of consortium: Kirkham v Boughey
[1958] 2 QB 338.

[page 444]

17.20 The contributory negligence of the wife does not affect the
husband’s per quod action: Mallett v Dunn [1949] 2 KB 180. In Curran v
Young (1965) 112 CLR 99, the wife suffered personal injuries in a motor
vehicle accident caused by the defendant’s negligent driving. There were
hospital and medical expenses which the husband paid, and the normal
household services which the wife had performed were lost during the period
of her incapacity. The husband succeeded in his claim of per quod consortium
amisit, notwithstanding a finding that the wife had been guilty of
contributory negligence, because the husband’s claim was an independent
one based upon his loss of her services.

4 Interference with Domestic Relations

Between Parent and Child
Loss of Services
17.21 Where a child has performed services for a natural parent or person
in loco parentis and has been injured by another, the parent can claim
compensation for the resultant loss of services to the parent. A parent may
have a right of action to recover an amount expended while a child is injured,
in circumstances where the parent is under an obligation to provide care and
attention for the injured child: Attorney-General (NSW) v Perpetual Trustee
Co Ltd (1952) 85 CLR 237; Blundell v Musgrave (1956) 96 CLR 73.

17.22 The contributory negligence of the injured child will not affect the
parent’s right of action: Lloyd v Lewis [1963] VR 277. The injured child may
be able to recover the expenses paid by a parent in the child’s personal action:
Cutcheon v Davis [1964] QWN 4.

17.23 Legislation in the Northern Territory has abolished the action in

respect of motor vehicle and work accidents: Motor Accidents
(Compensation) Act (NT) s 5; Return to Work Act (NT) s 52. In Victoria, no
damages may be claimed if the injury is the result of a motor vehicle accident:
Transport Accident Act 1986 (Vic) s 93.

Seduction, Enticement and Harbouring

17.24 Similar to a husband’s actions in respect of his wife, a father had an
action in regard to his daughters for seduction: Manvell v Thomson (1826) 2
C & P 303; 172 ER 137. The action allowed a father, or the person who stood
in place of the father, to be compensated for any consequential loss of the
daughter’s ability to provide household services due to having sexual
intercourse with a man other than her husband.

17.25 A mother has no right to sue (Hamilton v Long [1905] 2 IR 552) and
loss tends to be assumed. In Victoria and Western Australia, there is a
presumption that the relationship of father and daughter involves the
provision of household services: Wrongs Act 1958 (Vic) s 14; Evidence Act
1906 (WA) s 49.
 The action has been abolished in the Australian Capital Territory, South
Australia and Tasmania: Civil Law (Wrongs) Act 2002 (ACT) s 210(a); Civil
Wrongs Liability Act 1936 (SA) s 68(a); Civil Liability Act 2002 (Tas) s 28E.

[page 445]

17.26 The torts of enticement and harbouring sought to protect what was
regarded as a proprietorial interest in a child, similar to the status of a servant.
The actions arose if the defendant encouraged the child who was living with
their parents to leave home or to not return home: Evans v Walton (1867) LR
2 CP 615.
The actions have been abolished in the Australian Capital Territory, South
Australia and Tasmania: Civil Law (Wrongs) Act 2002 (ACT) s 210(b); Civil
Wrongs Liability Act 1936 (SA) s 68(b) and (c); Civil Liability Act 2002 (Tas)
s 28E.

Further Reading
R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis
Butterworths, Sydney, 2013, Chs 20 and 24.
M Thornton, ‘Loss of Consortium: Inequality Before the Law’ (1984)
10 Syd LR 259.

1. M Thornton, ‘Loss of Consortium: Inequality Before the Law’ (1984) 10 Syd LR 259.
[page 447]
 Chapter 18

Public and Statutory Duties

1 Introduction
18.1 There is a group of torts which allow a person, who has suffered harm
as a result of another’s breach or abuse of a public or statutory duty, to bring a
private action against that other person. The duty may arise under the
common law and/or statute.
In this chapter, three torts relating to breach or abuse of a public duty are
considered:
breach of statutory duty;
abuse of process; and
misfeasance in public office.
Public nuisance, another example of a tort which allows a person to bring a
private action based upon an interference with a public right, is considered in
Chapter 25.

2 Breach of Statutory Duty

18.2 The phrase, ‘breach of statutory duty’, may be used to refer to the
negligent exercise of a statutory power as well as the private cause of action.
Although the same breach of statute may give rise to both actions, the tort of
breach of statutory duty is a separate tort to that of negligence. The defining
characteristic of the tort of breach of statutory duty is that it allows a person
to bring a private cause of action for the breach of a public duty which has
caused that person harm. In Groves v Lord Wimborne [1898] 2 QB 402 at
415–16, Vaughan Williams LJ stated:
It cannot be doubted that, where a statute provides for the performance by certain persons of a
particular duty, and some one belonging to a class of persons for whose benefit and protection
the statute imposes the duty is injured by failure to perform it, prima facie, and, if there be
nothing to the contrary, an action by the person so injured will lie against the person who has so
failed to perform the duty.

See also Mallinson v Scottish Australian Investment Co Ltd (1920) 28 CLR

66 at 71.

18.3 The tort dates back to the 13th century, but it was during the 19th
century that the action achieved its current form.1

[page 448]

In particular, it was during the 19th century that the common law courts
used the breach of statutory duty tort action as a means of circumventing the
defences of common employment and contributory negligence, which often
denied injured workers a remedy at common law: Byrne v Australian Airlines
Ltd (1995) 185 CLR 410; 131 ALR 422. This early association of the tort with
the safety of workers continues today with industrial safety legislation being
more likely than other forms of legislation to provide the basis for a private
cause of action under the tort of breach of statutory duty: Lochgelly Iron &
Coal Co Ltd v McMullan [1934] AC 1; Waugh v Kippen (1986) 160 CLR 156;
64 ALR 195; Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304; 177 ALR
585.

18.4 The 19th century was also the period when many statutes were passed
for the benefit of private enterprise, for example the construction of railways
and other forms of infrastructure. Because of the private benefit conferred by
this type of legislation, courts were likely to find that a civil action was
available for those who suffered harm as a result of the activities sanctioned
by the legislation: Byrne v Australian Airlines Ltd (1995) 185 CLR 410; 131
ALR 422. Today, comparable statutes are those which give effect to
agreements between government authorities and private corporations for the
outsourcing of functions previously performed by government or public
authorities for the benefit of the public: Byrne v Australian Airlines Ltd;
Puntoriero v Water Administration Ministerial Corporation (1999) 199 CLR
575. In Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304; 177 ALR 585 at
[29], Gleeson CJ, Gummow and Hayne JJ commented that the current trend
towards the outsourcing of government functions raises similar issues as to
whether a private action is available under the outsourcing legislation.

18.5 This private cause of action has its critics, and some have suggested
that the tort ought to be abolished or at least refined.2 In Canada, the tort has
been abolished (R v Saskatchewan Wheat Pool [1983] 1 SCR 205) and in the
United Kingdom, claims for breach of statutory duty are still being litigated in
the superior courts, despite the recommendation of the Law Reform
Commission that the action be abolished: United Kingdom Law Commission,
Administrative Redress: Public Bodies and the Citizen, Consultation Paper No.
187 (2008).

18.6 To bring a breach of statutory duty action, the plaintiff must establish:
that a private cause of action in tort is available under the statute;
the statutory duty was imposed upon the defendant;
the harm suffered by the plaintiff was of a kind which the statute was
enacted to prevent;
the plaintiff was a person for whose protection the statute was enacted;
the defendant breached the statutory duty; and
the plaintiff’s harm was caused, both factually and in law, by the
defendant’s breach of the statutory duty.
See Alcoa of Australia Ltd v Apache Energy Ltd [2012] WASC 209.
 [page 449]

A Private Cause of Action

18.7 Whether or not a statute provides for a private or civil cause of action
is a question of statutory interpretation: O’Connor v S P Bray Ltd (1937) 56
CLR 464; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194
CLR 355 at [78]. A statute may expressly allow for a private cause of action,
but this is rare. For example, s 236 of the Australian Consumer Law provides:
(1) If:
(a) a person (the claimant) suffers loss or damage because of the conduct of another
person; and
(b) the conduct contravened a provision of Chapter 2 or 3;
the claimant may recover the amount of the loss or damage by action against that other
person, or against any person involved in the contravention.

Alternatively, the statute may expressly prohibit the bringing of a private

cause of action.

18.8 Most often, however, statutes are silent as to the availability of a

private or civil cause of action. In these circumstances, a court must
determine, as a question of law and as a matter of statutory interpretation,
whether a civil cause of action can be inferred from the ‘nature, scope and
terms’ of the statute.
Kitto J commented in Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 at
405:
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, including the nature of the
evil against which it is directed, the nature of the conduct prescribed, the pre-existing state of
the law, and, generally, the whole range of circumstances relevant upon a question of statutory
interpretation … It is not a question of the actual intention of the legislators, but of the proper
inference to be perceived upon a consideration of the document in the light of all its
surrounding circumstances.

See also X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 730.

Pre-existing law and history of the statute
18.9 If the statute is replacing one which previously allowed for a private
cause of action, there will be a strong inference that the current statute, in the
absence of a contrary intention, also supports a private or civil cause of
action: Byrne v Australian Airlines Ltd (1995) 185 CLR 410; 131 ALR 422.

Existing common law duty

18.10 If a common law duty is already imposed, then it is more likely that
a private cause of action under the statute will be inferred: O’Connor v S P
Bray Ltd (1937) 56 CLR 464; Byrne v Australian Airlines Ltd (1995) 185 CLR
410; 131 ALR 422; Atkinson v Newcastle and Gateshead Waterworks Co
(1877) LR 2 Ex D 441.
An important exception is where the legislation in question relates to the
regulation of traffic. Such legislation is interpreted to control and regulate
traffic, not provide a private right of action for individuals: see Bowling v
Weinert [1978] 2 NSWLR 282.

[page 450]

Purpose and subject matter of statute

18.11 A private cause of action is more likely to be inferred where the
stated purpose of the statute is the protection of the health, safety and welfare
of members of the public or of a specific section of the public such as
employees: Couch v Steel (1854) 118 ER 1193. In O’Connor v S P Bray Ltd
(1937) 56 CLR 464 at 478, Dixon J summarised the principles:
In the absence of a contrary legislative intention, a duty imposed by statute to take measures for
the safety of others seems to be regarded as involving a correlative private right, although the
sanction is penal, because it protects an interest recognized by the general principles of the
common law … Whatever wider rule may ultimately be deduced, I think it may be said that a
provision prescribing a specific precaution for the safety of others in a matter where the person
 upon whom the duty laid is, under the general law of negligence, bound to exercise due care, the
duty will give rise to a correlative private right, unless from the nature of the provision or from
the scope of the legislation of which it forms a part a contrary intention appears.

18.12 Both Dixon J’s comments and those of Kitto J in Sovar v Henry Lane
Pty Ltd quoted above (at 18.8) were endorsed by the High Court in Byrne v
Australian Airlines Ltd (1995) 185 CLR 410; 131 ALR 422 and Slivak v Lurgi
(Australia) Pty Ltd (2001) 205 CLR 304; 177 ALR 585.
In Wynn Tresidder Management Pty Ltd v Barkho [2009] NSWCA 149, the
respondent was injured when she slipped on a ramp at a shopping centre
controlled by the appellant. She did not work at the centre. She sued in
negligence and breach of statutory duty arguing that the appellant was in
breach of the Occupational Health and Safety Regulation 2001 (NSW).
McColl JA stated that it seemed ‘prima facie improbable that legislation
whose object is to secure the health, safety and welfare of persons at work
would extend to provide a private cause of action to members of the public’:
at [91]. The court did not have to decide the issue as it was established that
the appellant had breached its duty of care owed to the respondent as an
occupier.

Standard prescribed by statute

18.13 Traditionally, the courts have been inclined to infer a private cause
of action only where the statute specified a precise standard of conduct:
Waugh v Kippen (1986) 160 CLR 156; 64 ALR 195; Groves v Lord Wimborne
[1898] 2 QB 402; Atkinson v Newcastle and Gateshead Waterworks Co (1877)
LR 2 Ex D 441; Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304; 177
ALR 585; General Constructions Pty Ltd v Peterson (1962) 108 CLR 251 at
257. In O’Connor v S P Bray Ltd (1937) 56 CLR 464 at 478, Dixon J stated:
… a provision prescribing a specific precaution for the safety of others in a matter where the
person upon whom the duty is laid is, under the general law of negligence, bound to exercise
due care, the duty will give rise to a correlative private right, unless from the nature of the
provision or from the scope of the legislation of which it forms a part a contrary intention
 appears. The effect of such a provision is to define specifically what must be done in furtherance
of the general duty to protect the safety of those affected by the operations carried on.

18.14 For example, in Storozuk v Commissioner for Railways [1963] SR

(NSW) 581 at 593–4, Brereton J (with whom Else-Mitchell J agreed) doubted
whether regulations which expressed an obligation in terms of a requirement
to take ‘all practicable precautions’ founded a civil action because the phrase
did not ‘prescribe or define precisely the means

[page 451]

that must be taken’ to comply with the statutory standard. See also Alcoa of
Australia Ltd v Apache Energy Ltd [2012] WASC 209 at [106].
However, in Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304; 177
ALR 585, the High Court held that a provision of the Occupational Health,
Safety and Welfare Act 1986 (SA), which turned on the phrase ‘ensure so far
as reasonably practicable’, did provide a sufficiently precise standard to
support a private cause of action: at [27]–[29] per Gleeson CJ, Gummow and
Hayne JJ, at [50] per Gaudron J, at [87] per Callinan J. Slivak was applied in
McDonald (t/as B E McDonald Transport) v Girkaid Pty Ltd (2004) Aust Torts
Reports ¶81-768, by the New South Wales Court of Appeal to find that
requirements to take ‘all practicable steps’ and ‘all practicable precautions’
were sufficiently specific, when combined with the purpose of the dangerous
goods legislation, to allow a private cause of action.

18.15 See also Lubrano v Proprietors of Strata Plan No 4038 (1993) 6 BPR
13,308, where the plaintiff alleged that a failure of a body corporate of a
community titles scheme to comply with its obligations under the relevant
Act gave rise to an action in breach of statutory duty. Section 68 of the Strata
Titles Act 1973 (NSW) provided that a body corporate shall ‘(a) control,
manage and administer the common property for the benefit of the
proprietors; (b) properly maintain … the common property; (c) where
necessary, renew or replace any fixtures or fittings comprised in the common
property’. The plaintiff argued that the Act was like a safety Act. The
defendant pointed out that the Act did not impose specific obligations and
that s 68 made ‘mere motherhood statements’. Young J held that the cases
supported the finding that the phrase ‘where necessary’ was capable of
identifying a specific duty and therefore the Act did allow a private cause of
action. See also Seiwa Pty Ltd v Owners Strata Plan 35042 (2006) 12 BPR
23,673.

Protected class
18.16 If the purpose of the Act is for the general good of the public, rather
than the protection of a specified class, this is regarded to be ‘a strong
indication against an intention that there should be a private cause of action’:
Alcoa of Australia Ltd v Apache Energy Ltd [2012] WASC 209 at [84]. See also
Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173; Morrison Sports
Ltd v Scottish Power UK plc [2010] 1 WLR 1934. For example, s 17 of the
Work Health and Safety Act 2011 (Qld), which is specifically for the
protection of employees, does allow a private cause of action, while other
sections of the same Act, which are aimed at the protection of the public
generally, do not. Just because one of several sections in a statute does not
create a private right does not necessarily mean that other sections in the
same enactment cannot create such a right: O’Connor v S P Bray Ltd (1937)
56 CLR 464 at 479.
In Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91; 91 ALR 149,
the plaintiff alleged that the injuries he sustained in a hotel brawl were caused
by the defendant hotel’s breach of s 79 of the Liquor Ordinance 1975 (ACT),
by serving a person with liquor when it had reasonable grounds for believing
that he was intoxicated. The Federal Court of Australia held that s 79 did not
confer a private right of action. Davies, Kelly and Neaves JJ held (at FCR 102;
ALR 159–60):
 Section 79 appears in an Ordinance which is intended to protect the public interest by
regulating the sale of intoxicating liquor, so as to protect those who by overindulgence or
because of youth or mental ill health are at risk from its abuse … Section 79 does not confer a
private right of action

[page 452]

for damages resulting from its breach. Section 79 was enacted in the general public interest, not
for the protection of persons who may be injured by the conduct of intoxicated persons.

Planning legislation is another example of where it has been held that the
powers and duties are conferred for the benefit of the public generally, not
individuals or particular classes of individuals: see Lidner v Corp pf City of
Marion [2015] SASC 152; Buxton v Minister of Housing and Local
Government [1961] 1 QB 278.

Statute provides for a penalty

18.17 There is a strong inference that a civil action is available if the statute
does not impose a penalty for breach of the statutory duty: Sovar v Henry
Lane Pty Ltd (1967) 116 CLR 397 at 407. However, the provision of a penalty
does not automatically preclude a private right of action: see Whittaker v
Rozelle Wood Products Ltd (1936) 36 SR (NSW) 204 at 207. In X (Minors) v
Bedfordshire County Council [1995] 2 AC 633 at 731–2, Lord Browne-
Wilkinson stated:
If the statute provides no other remedy for its breach and the Parliamentary intention to protect
a limited class is shown, that indicates that there may be a private right of action since otherwise
there is no method of securing the protection the statute was intended to confer. If the statute
does provide some other means of enforcing the duty that will normally indicate that the
statutory right was intended to be enforceable by those means and not by private right of action:
Cutler v Wandsworth Stadium Ltd [1949] AC 398; Lonrho Ltd v Shell Petroleum Co Ltd (No 2)
[1982] AC 173. However, the mere existence of some other statutory remedy is not necessarily
decisive. It is still possible to show that on the true construction of the statute the protected class
was intended by Parliament to have a private remedy. Thus the specific duties imposed on
employers in relation to factory premises are enforceable by an action for damages,
 notwithstanding the imposition by the statutes of criminal penalties for any breach: see Groves v
Wimborne (Lord) [1898] 2 QB 402.

See also Darling Island Stevedoring & Lighterage Co Ltd v Long (1957) 97
CLR 36 at 53; Morrison Sports Ltd v Scottish Power UK plc [2010] 1 WLR 1934
at [28]. In Preston v Star City Pty Ltd [1999] NSWSC 1273, the plaintiff
argued that the defendant was liable for breach of statutory duty by inducing
him to take part in gambling. The court noted that there was an established
body monitoring casinos and supervising compliance, as well as criminal and
civil sanctions and disciplinary action in the event of a contravention of the
legislation. The court held that ‘the comprehensive regulatory scheme set up
under the [Casino Control Act 1922 (NSW)] and [Casino Control
Regulations 1995 (NSW)] … is such that the requisite legislative intention to
confer a private right of action for damages is lacking’: at [87].

18.18 As noted in X (Minors) v Bedfordshire County Council [1995] 2 AC

633, the presumption that the imposition of a penalty infers there is no civil
action available may be rebutted. A court may consider the following:
The nature of the damage for which penalties are imposed: Dairy
Farmers Cooperative Ltd v Azar (1990) 170 CLR 293; 95 ALR 1;
O’Connor v S P Bray Ltd (1937) 56 CLR 464 at 478. Generally, a private
cause of action is more likely to be inferred where the damage consists
of personal injuries. However, although these forms of action are the
most common, a breach of statutory duty action may also be available

[page 453]

for property damage (Nalder v Commissioner for Railways [1983] Qd R

620), and even for pure economic loss: Inland Revenue Commissioners
v Goldblatt [1972] Ch 498.
The nature and adequacy of the penalty prescribed for the breach of
the statutory duty: Butler v Fife Coal Co Ltd [1912] AC 149. For
 example, one of the factors in Byrne v Australian Airlines Ltd (1995)
185 CLR 410; 131 ALR 422, which mitigated against a finding that a
private cause of action was available, was that the available penalty for
breach was the relatively modest sum of $1,000. Considered together
with other factors, the size of the penalty did not support the inference
that an unlimited amount of common law damages should be available
in a civil action.
The subject matter of the statute: Some types of statute are presumed
to provide for a civil cause of action even where a penalty is imposed,
most notably, legislation concerned with workplace health and safety:
O’Connor v S P Bray Ltd (1937) 56 CLR 464; Schiliro v Peppercorn
Child Care Centres Pty Ltd (No 2) [2001] 1 Qd R 518. In contrast,
Australian road safety legislation is presumed not to provide for a civil
action: Tucker v McCann [1948] VLR 222; Brulhart v Jarman [1964]
NSWR 1210.

Delegated legislation
18.19 In regard to delegated legislation, it would seem that a private cause
of action is only available when a private cause of action could be available
under the enabling legislation: Byrne v Australian Airlines Ltd (1995) 185
CLR 410; 131 ALR 42. In Byrne, the plaintiff baggage handlers argued that the
manner in which they were dismissed for pilfering was in breach of cl 11(a) of
the Transport Workers (Airlines) Award 1988 (Cth). Awards are a form of
delegated legislation enacted by the Australian Industrial Relations
Commission, then pursuant to its powers under the Industrial Relations Act
1988 (Cth). Clause 11(a) provided that, ‘[t]ermination by an employer shall
not be harsh, unjust or unreasonable’ and a penalty for breach of the award
was provided for by s 178 of the Act.
The High Court held that, even if the plaintiffs’ dismissal occurred in a way
which did contravene cl 11(a) of the award, there was no private cause of
action available. While it was acknowledged that awards have statutory force,
the award was not to be regarded as being enforceable by way of a civil action
unless the enabling legislation, the Industrial Relations Act 1988, itself
allowed for the creation of private rights of action. As Brennan CJ, Dawson
and Toohey JJ stated (at CLR 803; ALR 430):
The appellants’ argument tended to focus upon the award itself rather than the Act. But an
award is not a statute and if a duty imposed by an award is to be regarded as a statutory duty
enforceable by way of a civil action for damages, then the necessary intention that it should be so
regarded must ultimately be found in the Act and not the award. The Act discloses no such
intention. [footnotes omitted]

McHugh and Gummow JJ stated the general principle in regard to whether

a civil cause of action should be inferred into delegated legislation as being:
… where the duty in question is created by delegated legislation in the form of regulations made
under power conferred on the Executive by statute, there is an added difficulty in discerning the
existence of a civil sanction for breach. The question then, as Fullagar J pointed out in Darling

[page 454]

Island Stevedoring and Lighterage Co Ltd v Long [(1957) 97 CLR 36 at 54–5] is whether the
statute gives power to create by regulation duties enforceable by action at the suit of a person
injured by breach thereof. If the statute does not expressly confer on the Executive a power by
regulation to create an action for damages at the suit of any person injured by breach of the
substantive provisions of the regulations, it must be difficult to construe the statute and the
delegated legislation as impliedly bringing about that result: at CLR 824; ALR 458–9.

See also Darling Island Stevedoring & Lighterage Co Ltd v Long (1957) 97
CLR 36; Govic v Boral Australian Gypsum Ltd [2015] VSCA 130.

The Duty was Imposed on the Defendant

18.20 A person cannot maintain a civil action for breach of a statutory
duty unless the statute imposes the duty on the defendant: Darling Island
Stevedoring & Lighterage Co Ltd v Long (1957) 97 CLR 36. In that case, the
plaintiff stevedore was injured while unloading a ship, when part of the cargo
hit the ship’s hatch beams which had been left on during the unloading
operation. The plaintiff brought an action against his employer, alleging
breach of the Navigation (Loading and Unloading) Regulations 1941 (Cth),
which provided that hatch beams should be removed while loading or
unloading. The regulations provided that any breach was punishable by a fine
of £100 imposed on the ‘person in charge’.
The High Court held that the plaintiff’s action for breach of statutory duty
failed because, although the relevant regulation did confer a private right of
action, any action lay against the ‘person in charge’. In this case, the foreman
of the stevedoring gang was ‘in charge’, not the defendant employer.

18.21 See also Irwin v Salvation Army (NSW) Property Trust [2007]
NSWDC 266, where the clause of the regulation required the controller of
premises to ensure that the floors were designed to be safe. The court held
that the clause was directed at the design and installation of the floors and
that the defendant employer had nothing to do with the design of the floors.

18.22 If the statute imposes the duty upon an employer personally, an

employer may not avoid liability by proving that the task subject to the duty
was delegated to another. The task may still be delegated but the liability
cannot. See Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; 206
ALR 387, which overruled Ginty v Belmont Building Supplies Ltd [1959] 1 All
ER 414 (plaintiff employee had no action if task delegated to them and that is
how they were injured).

18.23 Whether the doctrine of vicarious liability (see Chapter 20) applies
will depend upon whether the statute specifies the persons upon whom the
statutory duty is imposed, or leaves open the class to include those who are
responsible for the conduct of others. For example, in Progress & Properties
Ltd v Craft (1976) 135 CLR 651; 12 ALR 59, the plaintiff was injured when
riding on a goods hoist at a building site. The operator’s foot slipped off the
brake and the hoist fell to the ground at an excessive speed. The plaintiff sued
the operator and his employer, alleging breach of a regulation made under the
Scaffolding and Lifts Act 1912 (NSW), which provided:
The speed at which any load is raised or lowered shall not exceed 600 ft per minute.

[page 455]

The speed of the hoist had exceeded the prescribed maximum speed as it
fell to the ground. The High Court held unanimously that the plaintiff’s
action succeeded. Jacobs J (with whom Stephen, Mason and Murphy JJ
agreed) commented (at CLR 670; ALR 74):
[This] being a regulation designed to ensure the safety inter alia of persons travelling on the
hoist, there is nothing in the sub-regulation or its context to suggest that there should be no
right of civil action as a consequence of its breach by the person carrying out building work or
by a person for whose acts the builder is vicariously liable. [emphasis added]

See also Majrowski v Guy’s and St Thomas’s NHS Trust [2007] 1 AC 224
(breach of Protection from Harassment Act 1997 (UK) by employee made
employer vicariously liable).

The Statute was Intended to Prevent that Kind of

Harm
18.24 A person cannot maintain a private action for breach of a statutory
duty unless the plaintiff’s damage is the kind of damage the statute was
intended to prevent: Gorris v Scott (1874) LR 9 Ex 125; Cutler v Wandsworth
Stadium Ltd [1949] AC 398; Solomons v R Gertzenstein Ltd [1954] 2 QB 243.
In Gorris v Scott (1874) LR 9 Ex 125, the plaintiff’s sheep were washed
overboard while they were being carried on the defendant’s ship. The
defendant, in breach of s 75 of the Contagious Diseases (Animals) Act 1869
(UK), had failed to provide deck pens to hold the sheep. The plaintiff sued the
defendant, alleging that his sheep would not have been washed overboard if
the defendant had not breached his statutory duty to provide pens on the
deck of the ship. The Court of Exchequer held the defendant had breached a
statutory duty to pen the sheep, but the plaintiff’s action failed because loss of
the sheep overboard ‘was not contemplated’ by the statute, which was
designed to prevent the spread of contagious diseases.

18.25 Similarly, in Mummery v Irvings Pty Ltd (1956) 96 CLR 99, the
plaintiff entered the defendant’s sawmill to buy some timber and a piece of
wood flew from a saw and struck the plaintiff in the face, causing severe
injuries. The plaintiff sued the defendant, alleging it had breached the
Factories and Shops Act 1928 (Vic) s 59(1)(a), which provided:
Every occupier of a factory shall provide guards for … all dangerous parts of the machinery of
the factory …

The saw did not have a guard attached, but the High Court held that the
plaintiff’s action for breach of statutory duty failed because the obligation to
fence factory machinery under s 59(1)(a) was designed to protect against the
risks posed by the dangerous parts of the machinery and not designed to
protect against the risks indirectly posed by the machinery such as dangerous
objects being thrown from the machinery.

The Plaintiff was a Person for Whose Protection the

Statute was Passed
18.26 A civil action for damages will not lie unless the plaintiff is one of
the persons for whose protection the statute was passed: Lochgelly Iron &
Coal Co Ltd v McMullan [1934] AC 1; Knapp v Railway Executive [1949] 2 All
ER 508; Phillips v Britannia Hygienic Laundry Co Ltd [1923] 1 KB 539;
Whittaker v Rozelle Wood Products Ltd (1936) 36 SR (NSW) 204.

[page 456]

In Read v Croydon Corporation [1938] 4 All ER 631, the first plaintiff, a

minor, contracted typhoid after drinking contaminated water supplied by the
defendant corporation. Her father, the second plaintiff, incurred expenses in
looking after his daughter during her illness. Both sued the defendant
corporation, alleging that it had breached its statutory duty under the
Waterworks Clauses Act 1847 (UK) s 35 to provide:
… pure and wholesome water [to] all the inhabitants of the town … who … shall be willing to
pay a water rate for the same.

The court held that the statute conferred no right of action on the minor as
she was not a ratepayer. However, her father’s action succeeded because he
was a ratepayer, even though he himself had not contracted typhoid.

18.27 In Pask v Owen [1987] 2 Qd R 421, an action was brought against

defendants who gave their 15-year-old son an airgun and ammunition. The
defendants knew that their son allowed his 13-year-old friend to handle the
gun and ammunition. The friend accidentally shot himself in the eye with the
airgun and sued the defendants, alleging that they had breached the Firearms
and Offensive Weapons Act 1979 (Qld) s 63(2), which provided:
… a person shall not knowingly supply any firearm … or ammunition to or for the use of a
prevented person.

The defendants’ son, as a minor, was a ‘prevented person’ for the purposes
of the Act. The Full Court of the Supreme Court of Queensland held that s
63(2) did confer a private right of action on the plaintiff. Chief Justice
Andrews (with whom Kelly SPJ agreed) said (at 427):
The section of the Act creating the duty … created a private right vested in the plaintiff to have
his safety ensured by compliance by the defendants with the provisions of the section and thus
with the purposes of the Act. He is within the class sought to be protected, namely children
coming into contact with [the defendants’ son], also a child, in his home in possession of the
airgun and ammunition, but in any event he would have the right as a member of the public.

18.28 In Drexel London (a firm) v Gove (Blackman) [2009] WASCA 181 at

[237], it was held that visitors to a unit injured when a balcony collapsed at a
New Year’s Eve party were not within the class of persons protected by s 35(1)
(c) of the Strata Titles Act 1985 (WA), as the duty in the provision was owed
to ‘persons with a proprietary or occupational connection with the units
served by the common property’. See also Schuller v S J Webb Nominees Pty
Ltd (2015) 124 SASR 152, where it was held that legislation that empowered
publicans to eject intoxicated patrons from premises was to protect the other
patrons, not the ejected person.

Breach of the Duty

18.29 The plaintiff must establish the nature of the duty imposed by the
statute and whether that duty has been breached. This is a question regarding
the construction of the statute to determine whether a particular duty is
absolute, involving strict liability, or whether negligence must be proved:
Galashiels Gas Co Ltd v O’Donnell [1949] AC 275; Boyle v Kodak Ltd [1969] 1
WLR 661; [1969] 2 All ER 439; Waugh v Kippen (1986) 160 CLR 156; 64 ALR
195.

[page 457]

For example, in Galashiels Gas Co Ltd v O’Donnell, the defendant was

under a statutory obligation imposed by s 22(1) of the Factories Act 1937
(UK), which provided:
Every hoist or lift shall be of good mechanical construction, sound material and adequate
strength, and be properly maintained.

The House of Lords held that these words imposed an absolute obligation
on the defendant. In that case, it was therefore held that the plaintiff was not
required to prove that there was an alternative, safer system of work as he
would have had to do at common law if he had brought the action in
negligence. Lord Morton of Henryton said (at 282–3):
The words of the subsection are imperative, “shall be properly maintained”, and I can find
nothing in the context or in the general intention of the Act, read as a whole, which should lead
your Lordships to infer any qualification upon that absolute obligation. It is quite true that the
 subsection, so read, imposes a heavy burden upon employers, but the object of this group of
sections is to protect the workman. I think the subsection must have been so worded in order to
relieve the injured workman from the burden of proving that there was some particular step
which the employers could have taken and did not take … The statute renders the task of the
injured workman easier by saying, “You need only prove that the mechanism failed to work
efficiently and that this failure caused the accident”.

18.30 In Seiwa Pty Ltd v Owners Strata Plan 35042 (2006) 12 BPR 23,673,
the plaintiff was awarded damages for breach of statutory duty based upon
the owners corporation of a strata plan breaching the duty to maintain the
common property. Section 62 of the Strata Schemes Management Act 1996
(NSW) provided:
An owners corporation must properly maintain and keep in a state of good and serviceable
repair the common property and any personal property vested in the owners corporation.

The court held that the duty was a strict duty to maintain and keep in
repair, not a duty to use reasonable care to maintain and keep the property in
repair: at [2]. Therefore, it was irrelevant that the defendant had taken all
reasonable steps to comply with the duty contained in s 62.
See also Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304; 177 ALR
585 and McDonald (t/as B E McDonald Transport) v Girkaid Pty Ltd (2004)
Aust Torts Reports ¶81-768.

18.31 This may be contrasted with the Australian High Court decision in
Waugh v Kippen (1986) 160 CLR 156; 64 ALR 195. In Waugh, the plaintiff
was injured while moving a heavy steel beam. He sued his employers, alleging
that they had breached a rule made under the Factories and Shops Act 1960
(Qld), which provided:
A male employee over eighteen years of age shall not be permitted or allowed to lift, carry, or
move by hand any object so heavy as to be likely to cause risk of injury.

The High Court held, by a majority, that the statutory rule did not impose
an absolute liability on the defendant employers. The court held that the
words ‘permitted or allowed’ presupposed an awareness on the part of the
employer that his or her employee was engaged in moving an object so heavy
as to be likely to cause injury. Although the plaintiff had a pre-existing back
weakness, the employers neither knew nor ought to have known of this. As
they neither knew nor ought to have known that moving the beam

[page 458]

would be likely to cause injury to the plaintiff, they had not breached the duty
imposed by the statute.

18.32 If the duty is not absolute, the statute may set the standard of care
required by the defendant. In Parry v Woolworths Ltd [2010] 1 Qd R 1, the
court had regard to the subordinate legislation, the Manual Tasks Advisory
Standard 2000 (Qld). See also McDonald (t/as BE McDonald Transport) v
Girkaid Pty Ltd (2004) Aust Torts Reports ¶81-768 (‘all practicable steps’ and
‘all practicable precautions’); Austral Bronze Co Pty Ltd v Ajaka (1970) 44
ALJR 155 (‘so far as is reasonably practicable’).

18.33 The civil liability legislation in all jurisdictions, except for the
Northern Territory and South Australia, adopted the recommendation of the
Ipp Report3 that an act or omission of a public authority will only be
unreasonable if another public authority with the same functions would
consider the act or omission to be reasonable: Recommendation 39. For
example, s 36 of the Civil Liability Act 2003 (Qld) states:
Proceedings against public or other authorities based on breach of statutory duty
(1) This section applies to a proceeding that is based on an alleged wrongful exercise of or
failure to exercise a function of a public or other authority.
(2) For the purposes of the proceeding, an act or omission of the authority does not constitute
a wrongful exercise or failure unless the act or omission was in the circumstances so
unreasonable that no public or other authority having the functions of the authority in
question could properly consider the act or omission to be a reasonable exercise of its
functions.

See also Civil Law (Wrongs) Act 2002 (ACT) s 111; Civil Liability Act 2002
(NSW) s 43; Civil Liability Act 2002 (Tas) s 40; Wrongs Act 1958 (Vic) s 84;
Civil Liability Act 2002 (WA) s 5X.
Therefore, if the defendant is a public authority and the statute does not
impose strict liability, to avoid liability it could provide evidence that a public
authority with similar powers would consider the act or omission that is the
basis for the action, as a reasonable exercise of its power. See Hamcor Pty Ltd
v Queensland [2014] QSC 224, where it was held that s 36 of the Civil Liability
Act 2003 (Qld) applied only to actions for breach of statutory duty, and not
negligence actions, affirmed in Hamcor Pty Ltd v Queensland [2015] QCA
183.

Causation
18.34 The harm or damage suffered by the plaintiff must have been caused
by the defendant’s breach of the statutory duty: Sherman v Nymboida
Collieries Pty Ltd (1963) 109 CLR 580; Duyvelshaff v Cathcart & Ritchie Ltd
(1973) 1 ALR 125; Progress & Properties Ltd v Craft (1976) 135 CLR 651; 12
ALR 59. The breach need not be the sole contributing factor to the damage,
unless the statute requires it.

[page 459]

18.35 An example of issues with causation is loss claimed to result from a

breach of licensing requirements. It is difficult to establish some causal
relationship between an accident and the failure to comply with the statutory
requirement to hold a licence or certificate: Leask Timber and Hardware Pty
Ltd v Thorne (1961) 106 CLR 33; Matthews v McCullock of Australia Pty Ltd
[1973] 2 NSWLR 331.
However, where the licence requirement is in respect of dangerous
machinery and for the protection of those who may be exposed to the danger,
a court may take a different view. In John Pfeiffer Pty Ltd v Canny (1981) 148
CLR 218; 36 ALR 466, the plaintiff was injured when he was struck on the
head by a steel pin fired from an explosive-powered gun by a fellow
employee. That employee was not a ‘qualified operator’ for the purposes of
regulations made under the Scaffolding and Lifts Act 1912 (NSW), which
provided:
No person shall employ, instruct or allow any person to use a tool in any work without first
ensuring by proper enquiry that such person is a qualified operator and is not by reason of any
infirmity, disability or incapacity unfit to use such tool.

The plaintiff sued his employer, alleging that his injuries were caused by
breach of its statutory duty in allowing a person who was not a qualified
operator to use the gun. The High Court held that the plaintiff’s action did, in
this case, succeed. Mason J explained (at CLR 230; ALR 475):
[I]f a statute prohibits a person from operating a dangerous machine unless he holds a
certificate of competency, in order to protect a class of persons who might be injured by the
operation of the machine, it is evident that the particular object of the provision is to eliminate
or diminish the risk of injury due to incompetent operation of the machine by ensuring that it
will be operated by those who are competent. Breach of the statutory duty enlarges the risk of
incompetent operation of the machine and is in itself a cause which contributes to an injury
which is sustained through incompetent operation. In such a situation the problem of causation
is not a ground for denying the existence of a civil cause of action.

18.36 In circumstances where the injured person and the person whose
default under the statutory provisions caused the injury are identical, the
plaintiff will be held to be solely to blame for his or her own injury. In
Shedlezki v Bronte Bakery Pty Ltd (1970) 72 SR (NSW) 378, the plaintiff was
solely to blame for his injury but also involved his one-person company in
breach of a statutory duty by so doing. However, the decision in Shedlezki
must be now considered within the context of the High Court decision in
Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; 206 ALR 387.
In Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; 206 ALR
387, Wail was injured when carrying out contracted work for the respondent
as a driver for its laundry services. The respondent joined the appellant to the
proceedings seeking contribution as Wail was employed by the appellant as
well as being the director and shareholder. The High Court held that the
appellant could be liable to Wail as an employee for a breach of duty
committed by him as a director of the appellant: at [39].

Defences
18.37 A defendant has very few defences to rely upon in an action for
breach of statutory duty. If the statute that has been breached contains
defences, they may not be available

[page 460]

to the defendant; it will be a matter of construction of the provision. For

example, in Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397, it was held that
the defence raised by the defendant was concerned with criminal liability, not
civil, and therefore was not available.

18.38 Voluntary assumption of risk (volenti non fit injuria) is not available
as a defence because a person cannot consent to breach of a duty imposed by
a parliament: Wheeler v New Merton Board Mills Ltd [1933] 2 KB 669.
However, where it is sought to make an employer vicariously liable and the
statutory duty is not imposed personally upon the employer, the plaintiff’s
voluntary assumption of risk may be a defence: Shedlezki v Bronte Bakery
(1970) 72 SR (NSW) 378; Imperial Chemical Industries Ltd v Shatwell [1965]
AC 656.

18.39 In regard to the defence of illegality, the High Court has suggested
that the reason for not allowing a defence of illegality or joint illegal
enterprise is because statutes are usually designed to ensure the safety of the
persons concerned. Even if illegality was allowed as a defence, there would be
little scope for the action, especially in regard to breaches of workplace health
and safety legislation: Progress & Properties Ltd v Craft (1976) 135 CLR 651;
12 ALR 59.

18.40 Contributory negligence may be proven in an action of breach of

statutory duty to reduce a plaintiff’s damages: Piro v W Foster & Co Ltd
(1943) 68 CLR 313; Forrest v John Mills Himself Pty Ltd (1970) 121 CLR 149;
Kakouris v Gibbs Burge & Co Pty Ltd (1970) 44 ALJR 384; TAL Structural
Engineers Pty Ltd v Vaughan Constructions Pty Ltd [1989] VR 545;
Kondracuik v Jackson Morgan & Sons (1988) 47 SASR 280: see Chapter 13.
Contributory negligence is not available in the Australian Capital
Territory: Civil Law (Wrongs) Act 2002 (ACT) s 102(2).

3 Abuse of Process
18.41 The tort of abuse of process, also referred to as ‘collateral abuse of
process’, arises when a defendant uses the court process for a purpose that it
is not intended to support. Coleman v Buckingham’s Ltd [1963] SR (NSW)
171; Williams v Spautz (1992) 174 CLR 509; D’Orta-Ekenaike v Victoria Legal
Aid (2005) 223 CLR 1; 214 ALR 92. In Varawa v Howard Smith & Co Ltd
(1911) 13 CLR 35 at 91, Isaacs J stated:
… the term “abuse of process” connotes that the process is employed for some purpose other
than the attainment of the claim in the action. If the proceedings are merely a stalking-horse to
coerce the defendant in some way entirely outside the ambit of the legal claim upon which the
Court is asked to adjudicate they are regarded as an abuse of process for this purpose.

18.42 The tort is generally regarded as being first recognised in the case of
Grainger v Hill (1838) 4 Bing NC 212; 132 ER 160. In that case, the defendant
had secured the plaintiff’s arrest for non-payment of a debt. The defendant’s
sole purpose in bringing the debt recovery action was to bring pressure to
bear on the plaintiff to surrender the registration papers for a ship which the
defendant wished to prevent going to sea. The plaintiff successfully brought
an abuse of process action against the defendant who was required to
compensate the plaintiff for the losses he incurred in not being able to make
several profitable voyages.

[page 461]

18.43 The tort was first recognised by the Australian High Court in
Varawa v Howard Smith & Co Ltd (1911) 13 CLR 35 and then in Dowling v
Colonial Mutual Life Assurance Society Ltd (1915) 20 CLR 509.

18.44 To succeed in the tort of abuse of process:

the defendant must have had an improper or ulterior motive in
commencing or continuing the proceedings; and
the plaintiff must have suffered damage.

Improper Motive
18.45 An improper purpose is established if the proceedings are
commenced ‘to effect an object not within the scope of the process’: Grainger
v Hill (1838) 4 Bing NC 212 at 221; 132 ER 160 at 188; Varawa v Howard
Smith & Co Ltd (1911) 13 CLR 35. For example, in Williams v Spautz (1992)
174 CLR 509, the defendant issued defamation proceedings against the
plaintiffs in order to pressure a third party, the university, into reinstating the
defendant as a university lecturer. If the defendant continues the proceedings
rather than commence them for an improper motive, this will also be an
abuse of process: Williams v Spautz at 517; Liberty Financial Pty Ltd v
Bluestone Group Pty Ltd [2005] FCA 470.

18.46 Where there are mixed purposes, the plaintiff must establish that the
predominant purpose was improper: Williams v Spautz (1992) 174 CLR 509
at 517. This is established by proving that but for the improper or ulterior
purpose, the defendant would not have commenced the legal proceedings:
Williams v Spautz; Metall & Rohstoff AG v Donaldson Lufkin & Jenrette Inc
[1990] 1 QB 391; Hanrahan v Ainsworth (1990) 22 NSWLR 73.

18.47 It is not necessary that there were no reasonable grounds for

instituting the proceedings: Butler v Simmonds Crowley & Galvin [1999]
QCA 475. This is what distinguishes the action from the tort of malicious
prosecution as well as that the plaintiff does not have to prove that
proceedings were terminated in their favour: see Chapter 7.
It is also not necessary that the defendant had a prima facie case in the
original proceedings: Williams v Spautz at 522; Flower & Hart (a firm) v
White Industries (Qld) Pty Ltd (1999) 87 FCR 134.

18.48 The defendant must have been a party to the proceedings alleged to
be an abuse of process: Leerdam v Noori [2009] NSWCA 90. Therefore the
legal representative cannot be the defendant.

Damage
18.49 As an action on the case, the plaintiff must establish that they
suffered damage as a result of the defendant’s actions: Clissold v Cratchley
[1910] 2 KB 244.

Defences
18.50 It is no defence that legal advice, taken to substantiate the initial
issue of process, is proper: QIW Retailers Ltd v Felview Pty Ltd [1989] 2 Qd R
245. As to whether there needs

[page 462]

to be an overt act in pursuance of the improper purpose, see Williams v

Spautz (1992) 174 CLR 509; Butler v Simmonds Crowley & Galvin [1999]
QCA 475. Compare the American and Canadian requirement that such an
overt act is an essential element of the tort: Hanrahan v Ainsworth (1990) 22
NSWLR 73 at 119–24 per Clarke JA.

4 Misfeasance in Public Office

18.51 Misfeasance in public office is an action on the case where ‘a public
officer does an act which, to his [or her] knowledge, amounts to an abuse of
his [or her] office’: Farrington v Thomson [1959] VR 286 at 293.
In Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1;
[2001] 2 All ER 513, Lord Steyn described the tort of misfeasance in public
office as a well-established action on the case that could be traced back to the
17th century, with the decision of Ashby v White (1704) 14 St Tr 695; 92 ER
710 giving the tort its foundation. See also Dunlop v Woollahra Municipal
Council [1982] AC 158 at 172; Little v Law Institute of Victoria (No 3) [1990]
VR 257.
The tort involves policy considerations, as noted by the High Court in
Sanders v Snell (1998) 196 CLR 329; 157 ALR 491 at [37]:
Misfeasance in public office is concerned with misuse of public power. Inappropriate imposition
of liability on public officials may deter officials from exercising powers conferred on them
when their exercise would be for the public good. But too narrow a definition of the ambit of
liability may leave persons affected by an abuse of public power uncompensated. The tort of
misfeasance in public office must seek to balance these competing considerations.

18.52 It is the intention of the defendant that makes the invalid or

unauthorised act an abuse of the power. If a public officer acts beyond their
power, even knowingly, without the requisite ‘mental element’, there is no
action in misfeasance of office, but the officer may be personally liable in
negligence: Northern Territory v Mengel (1995) 185 CLR 307 at 357; 129 ALR
1 at 26. In Northern Territory v Mengel at CLR 347; ALR 18, the joint
judgment of Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ states:
The cases do not establish that misfeasance in public office is constituted simply by an act of a
public officer which he or she knows is beyond power and which results in damage. Nor is that
required by policy or by principle. Policy and principle both suggest that liability should be
more closely confined. So far as policy is concerned, it is to be borne in mind that, although the
tort is the tort of a public officer, he or she is liable personally and, unless there is de facto
authority, there will ordinarily only be personal liability.

In Leinenga v Logan City Council [2006] QSC 294 at [64], it was noted that
‘the tort of misfeasance in public office is not easily established. … It cannot
be made in a broad brush way. It required particularity in setting out the facts
that can, if proven establish the cause of action’.

18.53 The elements of the action were stated by Deane J in Northern

Territory v Mengel (1995) 185 CLR 307 at 370; 129 ALR 1 at 37. The plaintiff
must prove:
an invalid or unauthorised act committed with malice;

[page 463]

the act was by a public officer in the purported discharge of public

duties; and
the plaintiff suffered damage.

Invalid or Unauthorised Act Committed with Malice

18.54 An act of a public officer will be invalid if ‘there is no power to be
exercised or because a purported exercise of the power has miscarried by
reason of some matter which warrants judicial review and a setting aside of
the administrative action’: Northern Territory v Mengel (1995) 185 CLR 307 at
356; 129 ALR 1 at 25 per Brennan J. In Sanders v Snell (1998) 196 CLR 329 at
344; 157 ALR 491 at 500, it was noted that an action may be based upon an
act that is beyond the power of the public officer and included acts that are
invalid for a want of procedural fairness. For example, in Cornwall v Rowan
(2004) 90 SASR 269, the unlawful act was the withdrawal of funding in breach
of rules of procedural fairness.

18.55 If the act is valid, even though it may inflict foreseeable loss upon a
person, there is no action in misfeasance in public office: Northern Territory v
Mengel (1995) 185 CLR 307 at 356; 129 ALR 1 at 25 per Brennan J.

Malice
18.56 The plaintiff must prove that the defendant had the requisite state of
mind — malice. Deane J in Northern Territory v Mengel (1995) 185 CLR 307
at 370; 129 ALR 1 at 37, identified the ways in which malice may be
established:
an intention to cause harm to the plaintiff;
knowingly acting beyond their power with the knowledge that it will
cause or is likely to cause loss to the plaintiff; or
acting with reckless indifference as to the validity of their power and
the likely injury to the plaintiff.
In Northern Territory v Mengel, the respondents owned two cattle stations
in the Northern Territory — including Banka Banka Station, which was
purchased in 1987 for approximately $3 million, financed by a loan. The
respondents planned to repay $1 million with the proceeds from the sale of
cattle in 1988. The Department of Primary Industries and Fisheries in the
Northern Territory was carrying out a plan to eradicate bovine brucellosis
and tuberculosis, and despite the fact that the respondents’ cattle had
previously been confirmed free of the viruses, the Department ordered that
the respondents’ cattle could not be moved so tests could be carried out. This
was at the time the respondents intended to sell the cattle and by the time
they could sell, some of the herd had perished and the price had fallen
significantly, causing the respondents to suffer a loss. It was alleged that the
employees of the Department were public officers and either knew or ought
to have known that they were acting without authority.
As the officers did not know that their order in respect of the movement of
cattle was not within their power, and had not made the order with ‘reckless
indifference’, there was no malice.

[page 464]

See also Farrington v Thomson [1959] VR 286; Three Rivers District Council
v Bank of England (No 3) [2003] 2 AC 1; [2001] 2 All ER 513; Cornwall v
Rowan (2004) 90 SASR 269 at [212]; South Australia v Lampard-Trevorrow
(2010) 105 SASR 331.

18.57 In Sanders v Snell (1998) 196 CLR 329; 157 ALR 491, the Minister
for Education and Tourism had directed the Norfolk Island Tourist Bureau to
dismiss its executive officer, Snell. The Minister’s decision to bring about the
dismissal of Snell was based upon an auditor’s report, the accuracy of which
had been seriously questioned. When the Chair of the Tourist Bureau
suggested that Snell should be given an opportunity to explain, the Minister
revoked the appointments of the Bureau’s members, appointed new members
and directed the new members to terminate Snell’s contract, which was done.
The majority in the High Court of Gleeson CJ, Gaudron, Kirby and Hayne JJ
held (at [48]):
At most, the trial judge’s finding … was that the appellant had acted peremptorily and with no
regard to what he had been told would be fair. That is very different from finding that the
appellant knew that he was acting beyond power. Nothing in what was found by the judge to
have happened, and nothing that was revealed in the evidence, warranted the Full Court in
making a finding that the appellant knew or was reckless to the possibility that what he was
doing was without power for want of procedural fairness let alone making a finding of want of
honesty on his part. And yet that is what the Full Court found.

18.58 In Commonwealth v Fernando (2012) 200 FCR 1; 287 ALR 267, the
respondent had been granted permanent residency in Australia in 1995, but
in 1998 was convicted of sexual assault and sentenced to eight years
imprisonment. The Department of Immigration served notice upon him
asking for submissions within 14 days as to why his visa should not be
cancelled. The respondent sent his submissions within the time period, but
his visa was cancelled before the submissions were received. The evidence was
that it was known that the respondent had made submissions. The acting
Minister was aware that the respondent was to be released from gaol on 5
October 2003, and that it was desirable that the visa be cancelled before that
date so the respondent could be taken immediately to the immigration
detention centre upon his release. The acting Minister, whose appointment
was to expire on 4 October, cancelled the visa on 3 October. Siopis J of the
Federal Court found in the respondent’s favour, stating (Fernando v
Commonwealth (2010) 276 ALR 586 at [185]):
… at the time that the acting minister made the cancellation decision on 3 October 2003, he
knew [the applicant] had not been afforded procedural fairness, that it was, therefore, beyond
his power to cancel [the applicant’s] visa, and that by making the cancellation decision in those
circumstances he would be acting unlawfully. Further, I find that with the knowledge of those
matters, the acting minister proceeded to cancel [the applicant’s] visa, rather than adjourn the
making of that decision to await the arrival and consideration of [the applicant’s] submissions. I
find that he proceeded to make the decision on that day for the very purpose of ensuring that
[the applicant] would be taken into immigration detention immediately on his release from
Acacia prison on 5 October 2003, and with the intention that this should happen.

However, on appeal, the Full Federal Court of Australia held that Siopis J
had erred in the way he sought to draw inferences concerning the acting
Minister’s knowledge. At [130], the court stated:

[page 465]

A finding that a Commonwealth government minister has deliberately exercised an important

statutory power knowing that, in doing so, he was acting unlawfully is properly characterised as
grave.

The court held that the evidence revealed conflicting inferences and
therefore the necessary standard of proof as to intention had not been
satisfied.
See also Three Rivers District Council v Bank of England (No 3) [2003] 2 AC
1; [2001] 2 All ER 513.

18.59 The High Court in Northern Territory v Mengel (1995) 185 CLR 307;
129 ALR 1 suggested that the mental element required in misfeasance in
public office might be analogous to that which is required for imposing
liability on private individuals for the intentional infliction of harm as, for
example, with the tort of inducing breach of a contract. If this approach is
correct, then ‘misfeasance in public office is not confined to actual knowledge
but extends to the situation in which a public officer recklessly disregards the
means of ascertaining the extent of his or her power’: at CLR 347; ALR 19. It
was unnecessary to finally decide the point because the most that the
respondent claimed was that the stock inspection officers ought to have
known that they lacked the authority to impose restrictions on the movement
of Mengel’s cattle. In the absence of at least a reckless indifference as to the
extent of their powers, the officers were not liable for the tort of misfeasance
in public office.

Public Officer in Purported Discharge of Duty

18.60 In Northern Territory v Mengel (1995) 185 CLR 307 at 355; 129 ALR
1 at 25, Brennan J quoted from Henly v Mayor of Lyme (1828) 5 Bing 91; 130
ER 995 at 1001 to identify the class of public officers:
… if a man takes a reward, whatever be the nature of that reward, whether it be in money from
the crown, whether it be in land from the crown, whether it be in lands or money from any
individual, for the discharge of a public duty, that instant he becomes a public officer.

Therefore ‘public officer’ has a wide meaning. In Northern Territory v

Mengel, the employees of the Department of Primary Industries and Fisheries
were public officers; in Sanders v Snell (1998) 196 CLR 329; 157 ALR 491, the
Minister for Education and Tourism was a public officer; and in Farrington v
Thomson [1959] VR 286, the defendants were police officers. In Cannon v
Tahche (2002) 5 VR 317, it was held that a barrister and an employed solicitor
in the Office of Public Prosecutions were not public officers. However, a
judicial officer is a public officer: Rawlinson v Rice [1998] 1 NZLR 454 (a
District Court judge).
Under this tort, the public officer is personally liable: Northern Territory v
Mengel at CLR 347; ALR 19. See also Moder v Commonwealth; Sochorova v
Commonwealth (2012) 261 FLR 396 at [73], where it was noted:
… a case of misfeasance in public office cannot be built upon a foundation that is a composite of
the conduct of a number of individual officers, let alone a department or a statutory tribunal.

[page 466]

18.61 The officer must be acting in the discharge of their duties, that is,
exercising their public functions: Three Rivers District Council v Bank of
England (No 3) [2003] 2 AC 1; [2001] 2 All ER 513.

Damage
18.62 As an action on the case, the plaintiff must have suffered damage.
The damage must have been caused by the public officer’s unlawful or
unauthorised act: Northern Territory v Mengel (1995) 185 CLR 307; 129 ALR
1; Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1;
[2001] 2 All ER 513.

18.63 Whether the damage must be foreseeable is not clear. In Northern

Territory v Mengel, the joint judgment refers to the foreseeability of the
damage in relation to the act that the public officers know or ought to know is
beyond their power. Their Honours refer to Bourgoin SA v Ministry of
Agriculture [1986] QB 716 at 777, stating ‘liability requires an act which the
public officer knows is beyond power and which involves a foreseeable risk of
harm’: at CLR 347; ALR 19. However, Brennan J was of the opposite view:
Foreseeability of damage to another by one’s own conduct is the factor which warrants the
imposition of a duty of care to the other when engaging in the conduct. But the tort of
misfeasance in public office is not concerned with the imposition of duties of care. It is
concerned with conduct which is properly to be characterised as an abuse of office and with the
results of that conduct. Causation of damage is relevant; foreseeability of damage is not: at CLR
358; ALR 27.

Further Reading
M Aronson, ‘Misfeasance in Public Office: A Very Peculiar Tort’
(2011) 35 MULR 1.
R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis
Butterworths, Sydney, 2013, Chs 16 and 25.
T Cockburn and M Thomas, ‘Personal Liability of Public Officers in
the Tort of Misfeasance in Public Office Pts I and II’ (2001) 9 TLJ 80
and 245.
A Doecke, ‘Misfeasance in Public Office: Foreseen and Foreseeable
Harm’ (2014) 22 TLJ 20.
N Foster, ‘The Merits of the Civil Action for Breach of Statutory Duty’
(2011) 33 Syd LR 67.
H Luntz, D Hambly, K Burns, J Dietrich and N Foster, Torts: Cases and
Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2012, Ch 10.

1. For an examination of the history of the action, see N Foster, ‘The Merits of the Civil Action for
Breach of Statutory Duty’ (2011) 33 Syd LR 67.
2. See J L R Davis, ‘Farewell to the Action for Breach of Statutory Duty?’ in N J Mullany and A M
Linden (eds), Torts Tomorrow: A Tribute to John Fleming, LBC Information Services, Sydney,
1998, p 69.
3. Commonwealth of Australia, Review of the Law of Negligence — Final Report (the Ipp Report),
October 2002, available at
<http://www.treasury.gov.au/ConsultationsandReviews/Reviews/2002/Review-of-the-Law-of-
Negligence>.
[page 467]
 Chapter 19

Misrepresentation in Torts —
Negligence and Deceit

1 Introduction
19.1 As discussed in Chapter 10, where an act or omission caused
economic loss without physical damage to the property of the plaintiff, no
duty of care was owed: Electrochrome Ltd v Welsh Plastics Ltd [1968] 2 All ER
205. Therefore, recovery in negligence based on a negligent misrepresentation
was not allowed by the courts unless the damage suffered was physical: Le
Lievre v Gould [1893] 1 QB 491; Grange Motors (Cwmbran) Ltd v Spencer
[1969] 1 WLR 53. The exceptions to this were:
a fiduciary duty had been broken (Nocton v Lord Ashburton [1914] AC
932; Woods v Martins Bank Ltd [1959] 1 QB 55);
there was a statutory right; or
the misrepresentation constituted a term of a contract attracting
contractual remedies for breach.

19.2 However, not all misrepresentations are negligent; they may be

fraudulent or innocent. The law permitted a plaintiff to recover for economic
loss arising from a fraudulent misrepresentation through the action in deceit:
Derry v Peek (1889) 14 App Cas 337. If it was an innocent misrepresentation,
a representee may rescind a contract within a reasonable time, but there is no
claim in damages: Redgrave v Hurd (1881) 20 Ch D 1. This chapter considers
negligent and fraudulent misrepresentation.
19.3 The actions of negligent misrepresentation and deceit have become
less common with the enactment of consumer protection legislation,
currently the Australian Consumer Law (previously the Trade Practices Act
1974 (Cth)). The Australian Consumer Law provides a remedy for misleading
or deceptive conduct, and misrepresentations fall within this ambit: see 19.92.

2 Actionable Misrepresentations
19.4 A representation may be words or gestures or conduct: Horsfall v
Thomas (1862) 1 H & C 90; 158 ER 813; Grange Motors (Cwmbran) Ltd v
Spencer [1969] 1 WLR 53. To be an actionable misrepresentation at common
law, the representation must be false and

[page 468]

relate to a fact, past or present. Whether a representation is false is

determined objectively: John McGrath Motors (Canberra) Pty Ltd v Applebee
(1964) 110 CLR 656. Therefore, it is the sense in which a reasonable person,
in the position of the representee, would have understood the representation
which is relevant for this first element of the action: Krakowski v Eurolynx
Properties Ltd (1995) 183 CLR 563; 69 ALJR 629.
In Tipperary Developments Pty Ltd v Western Australia (2009) 258 ALR
124, the court had to assess the respondent’s statement that the merchant
bank it required the appellant to deposit $50 million with, was ‘basically
financially sound’. The court held (at [203]) that it was:
… sufficient, but not essential to demonstrate that, based on what [the Assistant Under-
Treasurer] knew or ought to have known, [the merchant bank] was financially unsound. It is
also sufficient if the appellant demonstrates that, based on what [the Assistant Under-Treasurer]
knew or ought to have known, there was no reasonable basis to positively state that [the
merchant bank] was financially sound …
19.5 As a general rule, silence or mere failure to disclose the truth, cannot
amount to a misrepresentation: Peek v Gurney (1873) LR 6 HL 377. However,
this view as to silence must be qualified. Setting out a portion only of the
truth and leaving the rest out may amount to a misrepresentation of the total
facts: Curtis v Chemical Cleaning & Dyeing Co [1951] 1 KB 805; Dimmock v
Hallett (1866) LR 2 Ch App 21; Awaroa Holdings Ltd v Commercial Securities
and Finance Ltd [1976] 1 NZLR 19. In Felton v Johnson (2000) Aust Torts
Reports ¶81-559, promotional brochures and a video were given to
prospective franchisees of a product to be used on glass. The promotional
material indicated that the product had been used by many companies, but
did not reveal that these were only trials and no further contracts had been
obtained. The High Court of New Zealand held that this information was
only telling half of the story and amounted to a misrepresentation: at 63,713.

19.6 A mere statement of intention, under some circumstances, may

amount to a misrepresentation of the fact of the presently held intention if
there is, in fact, no presently held intention to do that which is represented:
Edgington v Fitzmaurice (1885) 29 Ch D 459. Similarly, a statement of
opinion may be a misrepresentation if, in fact, the representor has no honest
belief in the opinion: Bisset v Wilkinson [1927] AC 177.
In Middleton v Aon Risk Services Australia Ltd [2008] WASCA 239 at [19]–
[20], it was explained:
In order to be a representation at common law there must be a statement relating to a fact, past
or present. A statement by a person as to his or her intention or statement of mind is a
statement of fact and thus a representation.

The statement of an opinion can be a statement of fact. It is ordinarily at least a statement of fact
that the person actually holds the opinion. It can also be a statement of fact that the person has
reasonable grounds for holding that opinion.

19.7 In Brown v Raphael [1958] Ch 636 at 641; 2 All ER 79 at 81, Lord

Evershed MR held that a statement of opinion was a statement of fact to the
extent that it is an assertion that the representor does in fact have that
opinion.

[page 469]

19.8 Statements of law may be actionable if the representor was in the

position of giving such advice, for example a legal practitioner to a client:
Eade v Vogiazopoulos [1999] 3 VR 889. The dividing line between fact and
law is a fine one and a misrepresentation as to the state of law in a particular
case might be regarded as a misrepresentation of fact for some purposes.

3 Negligent Misrepresentation
19.9 Actions of negligent misrepresentation are a particular category of
novel duty as the loss suffered by the plaintiff is pure economic loss: see
10.77. As an action in negligence, a plaintiff (the recipient) must establish:
a duty of care was owed by the defendant (the representor);
the duty of care was breached; and
damage was suffered as a result of the breach.

Historical Background
19.10 Notwithstanding the general principles of negligence enunciated in
Donoghue v Stevenson [1932] AC 562, there was no immediate recognition of
the right to recover for pure economic loss resulting from reliance upon a
negligent misstatement. This was largely due to policy considerations, in
particular the apprehension that to recognise such a right would result in
open-ended liability to an indeterminate class of persons, all of whom might
satisfy the test of reasonable foreseeability established under the neighbour
principle. Claims could also be out of proportion to the degree of culpability
concerned. As stated by Lord Pearce in Hedley Byrne & Co Ltd v Heller &
Partners Ltd [1964] AC 465 at 534:
Negligence in word creates problems different from those of negligence in act. Words are more
volatile than deeds. They travel fast and far afield. They are used without being expended and
take effect in combination with innumerable facts and other words. Yet they are dangerous and
can cause vast financial damage.

The judgment of Denning LJ in Candler v Crane Christmas & Co [1951] 2

KB 164, though in dissent, provided the first principled attempt to recognise a
duty of care that would permit recovery for economic loss resulting from
negligent advice. It provided a more limited test than reasonable foresight so
as to confine the liability that, potentially, could result from an application of
the reasonable foresight test alone. Lord Denning took the view that a duty
arose because the accountant prepared the accounts containing the negligent
statement for a particularly foreseeable party which, in that case, was the
particular plaintiff in the transaction in question: at 182–4.

19.11 It was not until Hedley Byrne & Co Ltd v Heller & Partners Ltd
[1964] AC 465 (Hedley Byrne) that the House of Lords, reconsidering the
older authorities and expressly overruling the majority decision in Candler v
Crane Christmas & Co [1951] 2 KB 164, recognised a limited duty of care in
respect of negligent statements causing economic loss. The plaintiffs were a
firm of advertising agents and the defendants were merchant bankers. The
plaintiffs had placed some small orders for advertising for a client. Later, they

[page 470]

received proposals for a very large advertising program supported by an

indirect credit reference from the client’s then bankers and placed credit
orders for the client on terms which attracted personal liability for the agents.
They became uneasy and asked their bank to obtain a financial report from
the client’s new bankers. Their bank subsequently received an oral report of
creditworthiness ‘in confidence and without responsibility’. A letter of
confirmation was then received by their bank with a similar disclaimer.
Following this, a second round of written reports was requested and given. In
reliance on the positive nature of the credit statements, the agents incurred
personal liability which resulted in a loss when the client went into
liquidation.

19.12 The duty of care may have been recognised in Hedley Byrne, but it
was a circumscribed one, limited to proof of a ‘special relationship’. In
addition, on the facts before the House of Lords, an express disclaimer was
held to be effective so as to avoid liability for the negligent misrepresentation.
The traditional concern at opening the floodgates was evident in a number
of the speeches. Lord Reid stated (at 482–3):
Apart altogether from authority, I would think that the law must treat negligent words
differently from negligent acts. The law ought so far as possible to reflect the standards of the
reasonable man, and that is what Donoghue v Stevenson sets out to do. The most obvious
difference between negligent words and negligent acts is this. Quite careful people often express
definite opinions on social or informal occasions even when they see that others are likely to be
influenced by them; and they often do that without taking that care which they would take if
asked for their opinion professionally or in a business connection …

Another obvious difference is that a negligently made article will only cause one accident, and so
it is not very difficult to find the necessary degree of proximity or neighbourhood between the
negligent manufacturer and the person injured. But words can be broadcast with or without the
consent or the foresight of the speaker or writer. It would be one thing to say that the speaker
owes a duty to a limited class, but it would be going very far to say that he owes a duty to every
ultimate “consumer” who acts on those words to his detriment. It would be no use to say that a
speaker or writer owes a duty but can disclaim responsibility if he wants to. He, like the
manufacturer, could make it part of a contract that he is not to be liable for his negligence: but
that contract would not protect him in a question with a third party, at least if the third party
was unaware of it.

So it seems to me that there is good sense behind our present law that in general an innocent but
negligent misrepresentation gives no cause of action.

19.13 Although the terminology used by their Lordships differed, the

general principle underlying the different statements was that if someone
possessed of a special skill undertook, quite irrespective of contract, to apply
that skill for the assistance of another person who relied upon it, a duty of
care would arise. None of their Lordships was prepared to extend the
ordinary Donoghue v Stevenson [1932] AC 562 principle to a case of a
representation, for the reason given by Lord Pearce, that ‘[i]f the mere
hearing or reading of words were held to create proximity there might be no
limit to the persons to whom the speaker or writer would be liable’: Hedley
Byrne at 534.

[page 471]

19.14 The liability which emerged from the judgments was a limited one,
dependent not merely on the notion of reasonable foresight but
circumscribed by the need for a ‘special relationship’ between the parties.
That ‘special relationship’ was, in turn, dependent upon the interplay between
three fundamental factors:
1. assumption of responsibility by the giver of the advice;
2. reasonable reliance by the receiver; and
3. the presence or absence of any disclaimer concerning liability for the
giving of the advice.

19.15 The House of Lords’ decision of Hedley Byrne found favour

immediately in Australia. In Evatt v Mutual Life & Citizens Assurance Co Ltd
(1967) 69 SR (NSW) 50, the plaintiff claimed he was given incorrect
information and advice concerning the security of actual and projected
investments in a company which was a subsidiary of the defendant assurance
company and which, subsequently, went into liquidation. The decision of
Hedley Byrne was explained and applied by the Court of Appeal of New South
Wales. On appeal to the High Court, regard was had to the specific statements
in Hedley Byrne as guides rather than binding statements of the new rule:
Mutual Life & Citizens Assurance Co Ltd v Evatt (1968) 122 CLR 556; [1969]
ALR 3. The judgments given by a majority of the High Court adopted a less
restrictive approach than the Privy Council in the subsequent appeal: (1970)
122 CLR 628; [1971] AC 793.

19.16 A decade later, in L Shaddock & Associates Pty Ltd v Parramatta

City Council (1981) 150 CLR 225; 36 ALR 385, the High Court demonstrated
its preference for its own view over that of the Privy Council.

19.17 Policy reasons may exist for excluding certain persons from the
relationship; for example, barristers in Australia will not, under existing law,
fall within the special relationship in respect of those matters for which a
limited immunity for court work is still recognised: Gianarelli v Wraith
(1988) 165 CLR 543; 81 ALR 417; Boland v Yates Property Corporation Pty
Ltd (1999) 167 ALR 575; D’Orta-Ekenaike v Victoria Legal Aid (2005) 223
CLR 1; 214 ALR 92.

Duty of Care
19.18 Negligent misrepresentation is now recognised as a discrete category
for which liability may be imposed for pure economic loss, provided a duty of
care may be established: Tepko Pty Ltd v Water Board (2001) 206 CLR 1; 178
ALR 634 at [73] per Gaudron J; Perre v Apand Pty Ltd (1999) 198 CLR 180;
164 ALR 606 at [7] per Gleeson CJ; Hill (t/as R F Hill & Associates) v Van Erp
(1997) 188 CLR 159 at 170–1; 142 ALR 687 at 694–5 per Brennan CJ; San
Sebastian Pty Ltd v Minister Administering the Environmental Planning and
Assessment Act 1979 (1986) 162 CLR 340 at 355; 68 ALR 161 at 169 per Gibbs
CJ, Mason, Wilson and Dawson JJ.

19.19 In determining whether a duty of care is owed, regard must be had

to all of the circumstances of the case. Although reasonable foresight still
plays a part in determining

[page 472]

the existence of the relationship giving rise to the duty of care, it has never
been accepted as the sole determinant: see Chapter 10.
In addition to reasonable foresight, the ‘special relationship’ for the
establishment of a duty of care, as originally identified in Hedley Byrne [1964]
AC 465, requires an assumption of responsibility by the speaker and
reasonable reliance by the recipient upon the misrepresentation: Mutual Life
& Citizens Assurance Co Ltd v Evatt (1968) 122 CLR 556; Tepko Pty Ltd v
Water Board (2001) 206 CLR 1; 178 ALR 634.

19.20 The characteristics of the special relationship were stated in Mutual

Life & Citizens Assurance Co Ltd v Evatt (1968) 122 CLR 556 at 571; [1969]
ALR 3 at 12 by Barwick CJ:
… I turn now to consider what are the features of the special relationship in which the law will
import a duty of care in utterance by way of information or advice.

First of all, I think the circumstances must be such as to have caused the speaker or be calculated
to cause a reasonable person in the position of the speaker to realize that he is being trusted by
the recipient of the information or advice to give information which the recipient believes the
speaker to possess or to which the recipient believes the speaker to have access or to give advice,
about a matter upon or in respect of which the recipient believes the speaker to possess a
capacity or opportunity for judgment, in either case the subject matter of the information or
advice being of a serious or business nature. It seems to me that it is this element of trust which
the one has of the other which is at the heart of the relevant relationship. I should think that in
general this element will arise out of an unequal position of the parties which the recipient
reasonably believes to exist. The recipient will believe that the speaker has superior information,
either in hand or at hand with respect to the subject matter or that the speaker has greater
capacity or opportunity for judgment than the recipient. But I do not think it can be said that
this must always be so, that inequality in these respects must necessarily in fact be present or be
thought to be present if the special relationship is to exist.

Then the speaker must realize or the circumstances be such that he ought to have realized that
 the recipient intends to act upon the information or advice in respect of his property or of
himself in connexion with some matter of business or serious consequence. Of course,
utterances in the course of social intercourse with no thought of legal consequence could not
satisfy such a condition.

Further, it seems to me that the circumstances must be such that it is reasonable in all the
circumstances for the recipient to seek, or to accept, and to rely upon the utterance of the
speaker. The nature of the subject matter, the occasion of the interchange, and the identity and
relative position of the parties as regards knowledge actual or potential and relevant capacity to
form or exercise judgment will all be included in the factors which will determine the
reasonableness of the acceptance of, and of the reliance by the recipient upon, the words of the
speaker.

Gaudron J stated in Tepko Pty Ltd v Water Board (2001) 206 CLR 1; 178
ALR 634 at [74]:
So far as concerns negligent misstatement, the circumstances which attract a duty of care have
been identified as “known reliance (or dependence) or the assumption of responsibility or a
combination of the two”. In that context, the word “known” includes circumstances in which
reliance or dependence ought to be known. Moreover, it is not essential that the person making
the statement know the precise use to which the information will be put, so long as he or she
knows or ought to know that it will be used for a serious purpose. [footnotes omitted]

[page 473]

19.21 Over 50 years after the decision of Hedley Byrne [1964] AC 465, the
three factors identified as fundamental to establishing a ‘special relationship’
which give rise to a duty of care for negligent misrepresentation remain as:
1. an assumption of responsibility by the speaker;
2. reasonable reliance by the recipient; and
3. the existence of any disclaimer.
The two factors of assumption of responsibility and reasonable reliance are
intertwined and very closely linked.

Current approach as a novel duty and the ‘special relationship’

19.22 An examination of the factors giving rise to a ‘special relationship’
reveals that they fall within the ambit of the current approach to novel duties:
see Chapter 1.1 The assumption of responsibility by the defendant may be
equated with the concept of control under the current approach to novel
duties: Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606 at [33]. The
vulnerability of the plaintiff may be relevant when considering whether the
reliance was reasonable or whether the plaintiff could have taken steps to
protect their interests: see Woolcock Street Investments Pty Ltd v CDG Pty Ltd
(2004) 216 CLR 515; 205 ALR 522 at [24]. In ABN AMRO Bank NV v
Bathurst Regional Council (2014) 2234 FCR 1; 309 ALR 445 at [598], the Full
Court of the Federal Court of Australia held:
In the field of negligent misstatement, vulnerability is the consequence of, not an additional
criterion of, knowledge (actual or which a reasonable person would have) of reasonable reliance
by an ascertainable class of persons.

Assumption of responsibility
19.23 ‘Assumption of responsibility’ refers to whether the speaker knew,
or ought to have known, that they were being trusted by the recipient to give
the information or advice and that they knew, or ought to have known, that
the recipient intended to rely upon it: Mutual Life & Citizens Assurance Co
Ltd v Evatt (1968) 122 CLR 556 at 571; [1969] ALR 3 at 12. In Tepko Pty Ltd v
Water Board (2001) 206 CLR 1; 178 ALR 634 at [74], Gaudron J stated:
So far as concerns negligent misstatement, the circumstances which attract a duty of care have
been identified as “known reliance (or dependence) or the assumption of responsibility or a
combination of the two”. In that context, the word “known” includes circumstances in which
reliance or dependence ought to be known. Moreover, it is not essential that the person making
the statement know the precise use to which the information will be put, so long as he or she
knows or ought to know that it will be used for a serious purpose.

19.24 Whether the defendant has assumed responsibility for the advice or
information is determined objectively and is considered in light of all of the
circumstances: Williams v Natural Life Health Foods Ltd [1998] 1 WLR 830;
[1998] 2 All ER 577. Therefore, to determine whether there is an assumption
of responsibility, the actual knowledge of the
 [page 474]

speaker and what a reasonable person would know in the position of the
speaker must be identified.
In Tepko Pty Ltd v Water Board (2001) 206 CLR 1; 178 ALR 634, the
respondent provided an estimate to the appellants of $2.5 million as the cost
of connecting water to land being developed. It was not the usual practice for
the respondent to provide such estimations. Because of the high cost of the
water connection, it was decided by the financing bank that the development
was not viable and the development did not go ahead. The land had to be sold
off to repay the loan and was sold at a much lower price than it would have
been if it had been subdivided. The respondent later discovered that the
estimate was excessive, an estimate of $803,000 being provided. The
appellants argued that the respondent had been negligent in providing the
overstated estimate and that, as a result, they had suffered economic loss. The
High Court held, by a 4:3 majority, that no duty of care was owed in giving
the estimate for the connection of water. Referring to Barwick CJ’s test in
Mutual Life & Citizens Assurance Co Ltd v Evatt (1968) 122 CLR 556; [1969]
ALR 3, that the speaker must realise, or ought to realise, that the recipient
intends to act upon the information or advice, the majority held that the
respondent had no appreciation, or could not be expected to appreciate, the
implications of making an error: at [48]. It was held that there was no
assumption of responsibility by the respondent on the facts. The Water Board
had provided an estimate only, the actual cost was dependent upon when the
work was done — work that at the time of the estimate had not commenced
— and, therefore, the Water Board could not have known, nor should it have
known, that the appellant intended to rely upon the estimate: at [82]–[86].

19.25 Evidence that there was an assumption of responsibility may include

that the speaker responded to a request for information or advice as well as
the fact that the speaker possessed a special skill to which the information or
advice was related: L Shaddock & Associates Pty Ltd v Parramatta City
Council (1981) 150 CLR 225; 36 ALR 385. However, the information or
advice must be of a business or serious nature: Mutual Life & Citizens
Assurance Co Ltd v Evatt (1968) 122 CLR 556; [1969] ALR 3; Tepko Pty Ltd v
Water Board (2001) 206 CLR 1; 178 ALR 634. This evidence also relates to
reasonable reliance: see 19.27.

19.26 If the speaker had some financial interest in the advice, this may
provide the basis for a finding of assumption of responsibility: Day v Ost
[1973] 2 NZLR 385; O’Leary v Lamb & Lensworth Finance Ltd (1973) 7 SASR
159. Nevertheless, financial interest alone was not sufficient to establish the
relationship under the restrictive view, as seen from a number of cases
involving estate agents who had clear potential financial interest through
payment of commission: Barrett v J R West Ltd [1970] NZLR 789; Presser v
Caldwell Estates Pty Ltd [1971] 2 NSWLR 471; Richardson v Norris Smith Real
Estate Ltd [1971] 1 NZLR 152; but compare Rawlinson & Brown Pty Ltd v
Witham (1995) Aust Torts Reports ¶81-341.

Reasonable reliance
19.27 To establish a duty of care for negligent misrepresentation, it must
have been reasonable for the recipient of the information or advice to have
relied upon it in light of all of the circumstances: Tepko Pty Ltd v Water Board
(2001) 206 CLR 1; 178 ALR 634 at [47] and [75]; Mutual Life & Citizens
Assurance Co Ltd v Evatt (1968) 122 CLR 556 at 571; [1969]

[page 475]

ALR 3 at 12. In Curran v Greater Taree City Council (1992) Aust Torts
Reports ¶81-152, the defendant council had approved building plans and
issued a building permit for a cottage, even though it knew that there was a
stormwater box culvert on the land in question. The cottage was later built
over the culvert and was bought by the plaintiff. The plaintiff knew, when she
bought the cottage, that it had been built over the culvert but relied on the
fact that the defendant council had approved the building plans. The
foundations of the cottage above the culvert later subsided, causing damage.
The Court of Appeal of New South Wales held that, although the plaintiff
had, in fact, relied on the defendant’s approval of the building plans, the
reliance was not reasonable in the circumstances because she knew of the
presence of the culvert.

19.28 Vulnerability of the plaintiff may be relevant when considering

reasonable reliance. In Fick v Groves [2010] QSC 89 at [195], the plaintiffs
argued that they were ‘vulnerable to suffer harm if the representations made
to them by the defendants were false’. In that case, the plaintiffs alleged that
the defendants had made negligent misrepresentations about the nut and
avocado farm they purchased in respect of the trees on the farm and the
estimated harvest. It was alleged that due to the short timeframe imposed
upon them to make a decision to purchase, they were not able to verify the
representations. The court considered how the plaintiff could have sought the
inclusion of a special condition in the contract of sale, even though the
defendants had indicated in the contract that they were not willing to warrant
the accuracy of the information provided. Applegarth J said (at [197]–[198]):
If the defendants had declined to include a suitably-qualified clause to the effect that they had
taken reasonable care in arriving at the production figures, then the plaintiffs were not entirely
vulnerable to the consequences of the defendants’ want of reasonable care. They had the choice
to not make an offer to purchase, or to offer a reduced price that reflected the defendants’ refusal
to either warrant the figures or to warrant that they had taken reasonable care in arriving at
them.

Accordingly, I am not persuaded that the plaintiffs were unable to protect themselves from the
loss that would arise from the defendants’ failure to take reasonable care.

In Chew v Amanatidis [2009] SASC 334, the respondent was a person with
significant business experience. The respondent had provided an indemnity
to investors, allegedly on the assurance of the appellant of the soundness of
the investment which turned out to be a scam. On appeal, the appellant
argued that there was no reasonable reliance to give rise to a duty of care. This
was based upon the fact that the appellant was not the respondent’s solicitor
or accountant, the respondent could have obtained his own legal advice and
that the respondent understood, by virtue of his own business experience, the
effect of the indemnity. White J (in dissent) stated (at [98]):
The duty of care to avoid giving incorrect information, opinions or advice may be owed as much
to the educated and experienced as it is to the illiterate, naïve or ingenuous. Indeed, it may [be]
because of their education and experience that some persons do seek out information and
advice.

However, the majority held that no special relationship existed between the
parties, referring to the significant business experience of the respondent. The
majority was of the opinion that the ridiculous high returns promised,
approximately 1300 per cent per annum,

[page 476]

would have sent ‘alarm bells ringing and resonating loudly to any potential
investor’ and that such predicted returns belied ‘any suggestion of an honest,
legitimate or genuine investment’: at [10]. Therefore, taking into account the
respondent’s business experience, there was no reasonable reliance in the
circumstances: at [21] and [42].
See also ABN AMRO Bank NV v Bathurst Regional Council (2014) 224
FCR; 309 ALR 445, where the court held that in the circumstances a licensed
financial services company was vulnerable as well as public authority
councils.

19.29 It is not necessary that the defendant intended to induce the plaintiff
to act, or refrain from acting, in reliance on the representation. Rather, an
intention to induce reliance is merely one of the various means by which it
may be shown that the plaintiff’s reliance upon the statement was reasonable:
Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (Reg) (1997)
188 CLR 241; 142 ALR 750 (Esanda). Moreover, Dawson J in Esanda
considered that an intention to induce reliance may exist without necessarily
giving rise to a duty of care:
A person who gives information or advice to another intending to induce the other to a course
does not necessarily undertake to be careful in the information he gives or the advice that he
offers. The occasion for the advice or information may be of a purely social nature inconsistent
with the assumption of any responsibility: at CLR 257; ALR 761.

Inducement may, nevertheless, constitute a significant, even critical, factor

because, as McHugh J expressed it:
… absent a statement to a particular person in response to a particular request for information
or advice or an assumption of responsibility to the plaintiff for that statement, it will be difficult
to establish the requisite duty of care unless there is an intention to induce the recipient of the
information or advice, or a class to which the recipient belongs, to act or refrain from acting on
it. Mere knowledge by a defendant that the information or advice will be communicated to the
plaintiff is not enough: at CLR 275; ALR 776.

19.30 In San Sebastian Pty Ltd v Minister Administering the Environmental

Planning and Assessment Act 1979 (1986) 162 CLR 340; 68 ALR 161, the
plaintiff developers had considered a redevelopment plan, published in 1968
by the New South Wales State Planning Authority and the Sydney City
Council, which was in place for several years until it was abandoned in 1972.
The developers claimed they had acquired land in the inner city area of
Woolloomooloo in reliance upon the plan and claimed they had suffered
financial loss because of the negligent preparation of the plan, specifically, in
failing properly to investigate and discover the incapacity of the transport
system to accommodate the projected workforce, rendering implementation
of the plan impossible. The plaintiff developers succeeded before the trial
judge but not before the New South Wales Court of Appeal or the High
Court.
The majority of the High Court stated that reliance was the ‘cornerstone of
liability for negligent misstatement’: at CLR 357; ALR 170. Their Honours
stated (at CLR 355; ALR 169):
When the economic loss results from negligent misstatement, the element of reliance plays a
 prominent part in the ascertainment of a relationship of proximity between the plaintiff and the
defendant, and therefore in the ascertainment of a duty of care …

[page 477]

In cases of negligent misstatement, reliance plays an important role, particularly so when the
defendant directs his statement to a class of persons with the intention of inducing members of
the class to act or refrain from acting, on reliance on the statement, in circumstances where he
should realise that they may thereby suffer economic loss if the statement is not true.

See also Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 462.

19.31 From these cases it can be ascertained that in assessing whether the
reliance was reasonable, account must be had of:
the nature of the advice or information;
the circumstances of how the advice or information was given; and
the identity, position and skill of the representor.
This is not an exhaustive list: ABN AMRO Bank NV v Bathurst Regional
Council (2014) 224 FCR 1; 309 ALR 445 at [574]. See also Tepko Pty Ltd v
Water Board (2001) 206 CLR 1; 178 ALR 634 at [47].

19.32 Nature of the advice or information The advice or information

must be of a serious or business nature: Mutual Life & Citizens Assurance Co
Ltd v Evatt (1968) 122 CLR 556 at 572; [1969] ALR 3 at 12 per Barwick CJ.
In Mutual Life & Citizens Assurance Co Ltd v Evatt, the advice and
information was about the security of the plaintiff’s assets — clearly of a
serious and business nature; see also Smith v State Bank of New South Wales
Ltd (2001) 188 ALR 729 (investment advice). In L Shaddock & Associates Pty
Ltd v Parramatta City Council (1981) 150 CLR 225; 36 ALR 385, the
information as to future road widening was of a serious nature as it affected
the value of the property being purchased by the plaintiff. A department of
state, from whom advice is sought in an area of the department’s singular
expertise, for example in a complex area of law and practice of customs and
excise tariff regimes, was held to be liable if reliance was placed on it with
likelihood of economic loss in Comptroller of Customs v Martin Square
Motors Ltd [1993] 2 NZLR 289. In Rentokil Pty Ltd v Channon (1989) 19
NSWLR 417, the purchaser was awarded damages after purchasing a house in
reliance on a pest report as the house had to be demolished because of pest
infestation.

19.33 Circumstances surrounding provision of advice or information

When considering the surrounding circumstances, how the advice or
information was obtained by the plaintiff may be relevant. Since San
Sebastian Pty Ltd v Minister Administering the Environmental Planning and
Assessment Act 1979 (1986) 162 CLR 340; 68 ALR 161, there is no convincing
reason for confining the liability for negligent misrepresentation to instances
of negligent statement made by way of response to a request by the plaintiff
for information or advice. In that case, the majority held (at CLR 356–7; ALR
170):
The existence of an antecedent request for information or advice certainly assists in
demonstrating reliance, which is a cornerstone of liability for negligent misstatement. However,
such a request is by no means essential though it has been suggested that instances of liability for
misstatement volunteered negligently will be “rare”.

19.34 However, where the information is volunteered to induce the

plaintiff to act, or refrain from acting, then it may be argued that it is not
necessary to prove the reasonableness

[page 478]

of the reliance: San Sebastian Pty Ltd v Minister Administering the

Environmental Planning and Assessment Act 1979 (1986) 162 CLR 340 at
357–8; 68 ALR 161 at 169–70. See also Esanda (1997) 188 CLR 241 at 256–7;
142 ALR 750 at 761.
19.35 In Mutual Life & Citizens Assurance Co Ltd v Evatt (1968) 122 CLR
556 at 571; [1969] ALR 3 at 12, the High Court noted that no duty of care
would arise if the advice or information was provided in a casual or social
context where the gravity of the inquiry was not evident or made clear.
Therefore, for reliance to be reasonable, the advice must be given in a serious
or business context, although even there it could be ‘off the cuff’, as in
Howard Marine and Dredging Co Ltd v A Ogden & Sons (Excavations) Ltd
[1978] QB 574. In Mohr & Mohr v Cleaver & Cleaver [1986] WAR 67, the
defendant accountant was held not to owe a duty of care for investment
advice requested by the plaintiff over the telephone as ‘off-the-cuff’ or
‘kerbside opinion’.
In Mbakwe v Sarkis [2009] NSWCA 330 at [12], the existing business
relationship between the plaintiff and defendant was held to negate any
argument that the advice given by the defendant had been ‘given as a friend
on a social or casual basis where legal relationships were not in
contemplation’. Although the plaintiff had retained the defendant as a
financial adviser, over the years the defendant had informed the plaintiff of
investment opportunities which the plaintiff had acted upon. The court held
that the negligent advice given by the defendant was in the scope of their
business relationship and clearly was of a serious and business nature: at [20].

19.36 In Tepko Pty Ltd v Water Board (2001) 206 CLR 1; 178 ALR 634, the
majority of the High Court held that it was not reasonable, in the
circumstances, for the appellant to have relied upon the statements of the
respondent when providing an estimate for the cost of water connection.
Gleeson CJ, Gummow and Hayne JJ stated (at [49]):
… the circumstances here were not such as to make it reasonable for [the appellant] to rely upon
the “ball-park” figure to meet the bank’s demand for a costings estimate. The identity and
relative position of the parties were such that the relationship between the board and [the
appellant] was one in which the board plainly was a reluctant participant; the board did not wish
to give [the appellant] information and it resisted giving it until eventually it “caved in”. In that
difficult situation [the appellant], at all material times, had access to expert advice, which he
utilised. These circumstances and the provisional nature of the estimate eventually provided in
 the letter of 21 November made it unreasonable to posit a duty upon the board in respect of the
use [the appellant] made of the estimate in his dealings with the bank.

19.37 Identity, position and skill The requirement of reliance for

negligent misstatement need not be specifically pleaded where the
relationship established is one between client and professional, because
reliance will necessarily be implied in such a relationship: Pullen v Gutteridge,
Haskins & Davey Pty Ltd [1993] 1 VR 27.

19.38 Generally, it will be reasonable to rely on advice or information if

the representor possesses a special skill. In Fick v Groves [2010] QSC 89 at
[192], it was stated:
The fact that a defendant has special expertise or knowledge is not, in itself, sufficient to
establish reasonable reliance. A duty of care may be imposed by law, however, where a statement
is made with the intention of inducing the plaintiff to act in a particular way, especially where
the defendant gives an unqualified response to a request for information.

[page 479]

In Norris v Sibberas [1990] VR 161, the court held that statements by a real
estate agent as to the viability of a motel could not be reasonably relied upon.
Marks J stated that, for there to be reasonable reliance, the representor must
profess to have some special skill which is applied to assist another: at 172. See
Rawlinson and Brown Pty Ltd v Witham (1995) NSW ConvR ¶55-740, where
the real estate agent was held liable in negligence for the statement made
about the long-term capacity of the water bore on the property being
purchased, as he knew that this was critical to the value of the property. The
information provided was based upon his knowledge of similar properties in
the area, not upon the particular water bore.

19.39 It is not necessary that the defendant be in the business of giving

advice or information. In Mutual Life & Citizens Assurance Co Ltd v Evatt
(1968) 122 CLR 556; [1969] ALR 3, the High Court was of the view that there
was no need for the defendant to be in the business of giving advice in order
for a duty of care to be found. The possession of a special skill is merely
another circumstance for the court to take into account when determining
whether the reliance by the plaintiff was reasonable. This was not the opinion
of the Privy Council, where it was held by a majority, that it was a necessary
characteristic of the special relationship giving rise to the special duty of care,
that the party giving the advice carry on the business of giving advice or let it
be known that he or she claimed to possess skill and competence in the field
in question: Mutual Life & Citizens Assurance Co Ltd v Evatt (1970) 122 CLR
628 at 637; [1971] AC 793 at 805.

19.40 Statutory authorities are often the sole repository for information
required by the public, for example searches carried out before the
completion of a contract to purchase land. There is an expectation that the
information requested will be provided in compliance with the proper
procedures as set by that authority: Mid Density Developments Pty Ltd v
Rockdale Municipal Council (1993) 116 ALR 460. If incorrect information is
given in response to an inquiry and damage is suffered as a result, the
authority may be liable for negligent misrepresentation.2
In L Shaddock & Associates Pty Ltd v Parramatta City Council (1981) 150
CLR 225; 36 ALR 385, the appellants made inquiries of a council as to
whether there were any road-widening proposals that would affect the land
being purchased by the plaintiff. A certificate was issued by the council
without any endorsement concerning any road widening, this being
interpreted that there was no proposal. The appellants bought the property on
this basis but, in fact, there was a proposal to widen the road that would affect
the property. The appellants would not have bought the land if the proposal
was known. The High Court held that the council owed a duty of care in
providing the information to the appellants and that the duty had been
breached. Gibbs CJ stated (at CLR 235; ALR 392):
From the standpoint of principle there is no difference between a person who carries on the
business of supplying information and a public body which in the exercise of its public functions
 follows the practice of supplying information which is available to it more readily than to other
persons, whether or not it has a statutory duty to do so. In either case, the person giving

[page 480]

the information to another whom he knows will rely upon it in circumstances in which it is
reasonable for him to do so, is under a duty to exercise reasonable care that the information
given is correct. A public body, by following the practice of supplying information upon which
the recipients are likely to rely for serious purposes, lets it be known that it is willing to exercise
reasonable skill and diligence in ensuring that the information supplied is accurate. In the
circumstances, diligence might be more important than skill, although competence in searching
for and transmitting the information must play a part. However, even if diligence only and not
skill were required, a public body might be specially competent to supply material which it had
in its possession for the purposes of its public functions.

19.41 However, it will not always be the case that the authority will be
liable as reliance upon the information must be reasonable in the
circumstances. If the authority is the sole repository of the information being
sought, reliance will be more likely to be reasonable. In Tepko Pty Ltd v Water
Board (2001) 206 CLR 1; 178 ALR 634, the majority held that it was not
reasonable for the appellants to rely upon the estimate provided by the
respondent. In that case, the respondent was not obliged to give an estimation
of the cost of the water connection to the proposed development and had
only done so under pressure. The court also noted that the appellants could
have relied on their own experts as to the cost of the connection. Gaudron J
stated (at [88]):
The speculative nature of the venture and the uncertainty of the political and administrative
processes which the appellants set in train serve to emphasise the unreasonableness of any
reliance they may have placed on what was said or done by any particular participant in those
processes.

If the defendant is a statutory authority, the civil liability legislation will

also be relevant to the issue of a duty of care in negligent misrepresentation:
see 10.120.
Reliance by third parties
19.42 Reliance is one of the control factors when arguing a duty of care for
negligent misrepresentation and plays an important role. Policy
considerations play an important role when considering imposing a duty of
care for negligent misrepresentation, particularly concerns of indeterminate
liability and opening the floodgates of litigation. The fear of indeterminate
liability requires a court to identify the circumstances in which the maker of a
statement may owe a duty of care to persons other than the person to whom
the statement was directly and intentionally communicated.

19.43 In Esanda (1997) 188 CLR 241; 142 ALR 750, the High Court
considered the issue of to whom the duty is owed. The plaintiff lent money to
a company, Excel, relying on accounts that had been audited by the
defendant. The accounts overstated the company’s assets, and it defaulted on
the loan. On appeal to the High Court, the issue was whether the facts, as
pleaded by the plaintiff, Esanda, were sufficient to support a finding that the
defendant owed the plaintiff a duty of care in regard to its audit report on the
company’s assets.
The court unanimously held that reliance on the audit report was not
sufficient, on its own, to give rise to a duty of care. As Dawson J expressed it
(at CLR 254; ALR 759):
The plea that Esanda was a member of a class of persons who might reasonably and relevantly
rely on the Excel accounts and the auditors’ report was no more than a plea that it was
foreseeable

[page 481]

that carelessness in making the report might cause harm to Esanda. However, mere
foreseeability of harm does not, where the only harm is pure economic loss, give rise to a duty of
care.

Brennan CJ (at CLR 252; ALR 757) held that the pleadings were deficient
because they failed to satisfy the following requirements:
… in every case, it is necessary for the plaintiff to allege and prove that the defendant knew or
ought reasonably to have known that the information or advice would be communicated to the
plaintiff, either individually or as a member of an identified class, that the information or advice
would be so communicated for a purpose that would be very likely to lead the plaintiff into a
transaction of the kind that the plaintiff does enter into and that the plaintiff would enter into
such a transaction in reliance on the information or advice and thereby risk the incurring of
economic loss if the statement should be untrue or the advice should be unsound. If any of these
elements be wanting, the plaintiff fails to establish that the defendant owed the plaintiff a duty to
use reasonable care in making the statement or giving the advice.

McHugh J stated (at CLR 281; ALR 780):

This survey of authority in England, Canada, New Zealand and the United States shows that,
absent some mutual relationship giving rise to an assumption of responsibility, the common law
courts are reluctant to impose a duty of care on an auditor in favour of a third party unless the
auditor intended that the audit report be given to the third party for a specific purpose. The
trend is very much against expanding the liability of auditors for negligent misstatements.
[footnotes omitted]

Later in his judgment, his Honour goes on to say (at CLR 289; ALR 787):
… the result of extending liability will ordinarily be to impose a financial burden on the auditor
out of all proportion to his or her comparative fault, and the risk of imposing that liability and
burden may be contrary to the public interest. Moreover, the plaintiff has failed to prove that the
demands of corrective justice require a remedy for the plaintiff. In these circumstances, the case
for extending liability to cover cases like the present is not compelling. In the absence of cogent
evidence that the public interest or corrective justice requires an extension of auditors’ liability
to cases where no more appears than the auditor knows that the plaintiff might rely on the
audited accounts and report, this Court should not extend the liability of auditors to such cases.

See also R Lowe Lippmann Figdor & Franck (a firm) v AGC (Advances) Ltd
[1992] 2 VR 671 at 683.

19.44 In BT Australia Ltd v Raine & Horne Pty Ltd [1983] 3 NSWLR 221
at 234, Wootten J stated:
… persons to whom the Hedley Byrne [[1964] AC 465] duty is owed must usually be in some
sense (the precise sense will no doubt present continuing problems) “identified or identifiable”
persons or “… an identified or identifiable class of persons” (per Barwick CJ in Evatt ([(1968)
122 CLR 556] at 570)). A similar limitation may be necessary where what the defendant knows
is not that the information or advice will be passed on to another who will act on it, but that it
will be used by the recipient himself to act in the execution of an existing duty to another in a
 way that may cause loss to that other. Probably in most cases the knowledge of an existing duty
on the part of a recipient to the other person will be sufficient to make that other person
identified or identifiable to a sufficient degree.

[page 482]

In that case, a negligent valuation was relied upon by a trustee acting as the
investment manager of a superannuation fund. The negligence led to some
unit holders of the trust losing money. The defendant denied that it owed a
duty of care to those unit holders as they were members of an unascertained
class and that, if it did, it was protected by a disclaimer included in the
valuation. The court held that although the unit holders were not known
individually, they were a limited and ascertained class: at 235. The defendant
knew that the plaintiff was the investment manager of a superannuation fund,
that the trust had been set up for the purpose of investing in that fund and
that the valuation was to be used and relied upon for that investment.

19.45 In Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland)

Pty Ltd (No 3) [2003] 1 Qd R 26, the respondent had a contract with a
property developer whereby the respondent had agreed to pay a lump sum,
based on the average of two valuations, for the completion of the
construction, fitting out and leasing of the shopping centre. The appellant
made a negligent valuation of a shopping centre which led to the respondent
having to pay the developer an additional amount. The Queensland Court of
Appeal held that the appellant owed the respondent a duty of care.
McPherson JA stated (at [25]–[26]):
In every case, it is, according to Brennan CJ [in Esanda Finance Corporation Ltd v Peak Marwick
Hungerfords (Reg) (1997) 188 CLR 241], necessary to establish that the maker of the statement
knew or ought reasonably to have known that it would be communicated to the plaintiff, either
individually or as a member of an identified class; that it would be “very likely” to lead the
plaintiff to enter into a transaction of the kind in question; and “very likely” that the plaintiff
would do so in reliance on the information or advice, and thereby risk incurring economic loss
if the statement was untrue or the advice unsound: Esanda v Peat Marwick. In the same case,
 Gummow J, in the course of reviewing the American authorities went some way to recognising
that the reasoning in Bily v Arthur Young & Co (1992) 834 P 2d 745 offered assistance in
resolving the issues in the Esanda case (188 CLR 241, 307); and, although McHugh J was
perhaps less enthusiastic (188 CLR 241, 280), both his Honour and Gummow J have since
referred with evident approval to “equivalent to contract” in describing the source of the duty
owed by a valuer to a financier with whom he was not in contractual relations but whom he
expected would rely on his opinion. See Kenny & Good Pty Ltd v MQICA (1992) Ltd (1999) 73
ALJR 901, 911, 917–18. Not long before, in Hill v Van Erp (1997) 188 CLR 159, 233–4,
Gummow J had also referred with favour to the concept of “linking conduct” adopted in the
California decision.

If some concept such as linking conduct or contractual equivalence is adopted here, [the
respondent] has firm ground on which to base its claim for damages against [the appellant] for
their negligent valuation … [the respondent] was not simply one person among many who
could possibly be foreseen as likely to act on the [appellant’s] valuations. It was one of only two
who were directly and immediately affected by delivery and receipt of the valuation …

See also Kestrel Holdings Pty Ltd (ACN 009 590 265) v APF Properties Pty
Ltd (ACN 095 297 019) (2009) 260 ALR 418 (valuers knew or ought to have
known reliance would be placed upon its valuations, even though they may
not have known of the respondent specifically); ABN AMRO Bank NV v
Bathurst Regional Council (2014) 224 FCR 1; 309 ALR 445 at [1260] (a class is
not indeterminate if it is known and identified and liability and appellant not
knowing the precise identity of the class, the exact number of members of the
class or the exact loss does not equate to indeterminate liability).

[page 483]

Disclaimers
19.46 The assumption of responsibility may be negatived or excluded by
an appropriate disclaimer, as in Hedley Byrne [1964] AC 465. However, on
the view that the duty of care arises by operation of law and not purely by
virtue of a person’s personal and factual assumption of responsibility, courts
are likely to take the view that speakers may not always exempt themselves
from the performance of a duty. Rather, this would be a factor to be taken
into consideration in all the circumstances and might prevent a relationship
arising if sufficiently potent. As Barwick CJ, in Mutual Life & Citizens
Assurance Co Ltd v Evatt (1968) 122 CLR 556 at 570; [1969] ALR 3 at 12,
stated:
The duty of care, in my opinion, is imposed by law in the circumstances. Because it is so
imposed, I doubt whether the speaker may always except himself from the performance of the
duty by some express reservation at the time of his utterance. But the fact of such a reservation,
particularly if acknowledged by the recipient, will in many instances be one of the circumstances
to be taken into consideration in deciding whether or not a duty of care has arisen and it may be
sufficiently potent in some cases to prevent the creation of the necessary relationship. Whether
it is so or not must, in my opinion, depend upon all the circumstances of and surrounding the
giving of the information or advice.

19.47 In Mid Density Developments Pty Ltd v Rockdale Municipal Council

(1993) 116 ALR 460, certificates provided by the council contained the
statement: ‘The above information has been taken from the council’s records
but council cannot accept any responsibility for any omission or inaccuracy.’
The evidence was that there was a complete failure to have recourse to
relevant council records in the preparation of the certificates. The council
argued that, due to the disclaimer, there was no duty of care owed or that
there was no reasonable reliance. The Federal Court held that the existence of
the disclaimer did not render the plaintiff’s reliance upon the certificates
unreasonable. The council was in the better position to know the accuracy of
the information and the disclaimer was a statement in respect of the
procedure that should have been followed in preparing the certificate. Any
omission or inaccuracy that the council was denying was in the process of
taking information from the records. As procedure had not been followed,
the disclaimer was of no effect: at 471.

19.48 A disclaimer will be closely scrutinised and may amount to an

implied acceptance of responsibility for some consequences: BT Australia Ltd
v Raine & Horne Pty Ltd [1983] 3 NSWLR 221.

19.49 Contracts of sale commonly include a ‘no reliance clause’ requiring

that the purchasers acknowledge that they have relied upon their own
inspection, knowledge and inquiries and not upon any representations made
by the vendor or on behalf of the vendor. Such contractual acknowledgments
do not preclude a finding of a duty of care and do not necessarily make
reliance unreasonable. In Fick v Groves [2010] QSC 89 at [204]–[205] (see
19.28), the court held:
Ultimately, such a contractual acknowledgment of no reliance needs to be weighed with the
evidence of actual reliance. … The issue is whether such reliance was reasonable in
circumstances in which they contracted on the basis that they did not rely upon such a
representation.

[page 484]

The contractual acknowledgment is an important circumstance against a finding that the

plaintiffs’ reliance was reasonable in all the circumstances. However, the circumstances in which
the representations were made were such as to indicate to the defendants that the plaintiffs
intended to rely upon the representations in the brochure and the production history document,
save to the extent that these were qualified or contradicted by what was discussed at the meeting.
The defendants intended that the plaintiffs should rely upon the information and advice
contained in the brochures. The disparity between the knowledge and expertise of the parties in
relation to the matters contained in the representations and the limited opportunity that the
plaintiffs had to verify the representations are circumstances which strongly favour the
imposition of a duty of care. I consider that in all the circumstances it was reasonable for the
plaintiffs to rely upon the representations, notwithstanding the “no reliance” clause in the
contract and the fact that the plaintiffs did not seek to protect their position by negotiating a
contractual provision to the effect that the defendants had taken reasonable care in making the
representations.

19.50 When considering the duty of care for negligent misrepresentation

where there is a disclaimer, the courts will determine first whether there is a
duty of care before considering the effect of the disclaimer: BT Australia Ltd v
Raine & Horne Pty Ltd [1983] 3 NSWLR 221; Derring Lane Pty Ltd v
Fitzgibbon (2007) 16 VR 563.

Scope of the Duty of Care

19.51 The duty of care recognised in Hedley Byrne [1964] AC 465, Mutual
Life & Citizens Assurance Co Ltd v Evatt (1968) 122 CLR 556; [1969] ALR 3, L
Shaddock & Associates Pty Ltd v Parramatta City Council (1981) 150 CLR
225; 36 ALR 385 and San Sebastian Pty Ltd v Minister Administering the
Environmental Planning and Assessment Act 1979 (1986) 162 CLR 340; 68
ALR 161, is a duty not to mislead a recipient in the giving of advice or the
expression of opinion. However, as the recipient must have reasonably relied
upon the statement before recovery is permitted, it is not an absolute duty.
In Smith v State Bank of New South Wales Ltd (2001) 188 ALR 729, the
plaintiffs sued the defendant bank after losing $300,000 from an investment
made in reliance on the advice provided by an accountant who was certified
as an authorised agent of the bank. The bank had certified the accountant but
had failed to discover that the accountant was, in fact, an undischarged
bankrupt and had a criminal record. The court held that the bank owed a
duty of care to its customers, who read the accreditation certificates issued by
the bank to its authorised agents, to take reasonable care that the certificates
were accurate.

19.52 The duty arising from advice may be continuous, in the sense that if
the giver of advice gains additional information rendering an original
representation no longer reasonable, there is a duty to correct the position
based on knowledge of changed circumstances: Richard Ellis (WA) Pty Ltd v
Mullins Investments Pty Ltd (1995) Aust Torts Reports ¶81-319.
In RT & YE Falls Investments Pty Ltd v New South Wales [2007] NSWCA
18, the appellants, owners of a cattle stud, sued the New South Wales
Department of Agriculture for the negligent advice given to them in respect
of their infected cattle. The appellants had been advised not to remove the
diseased cattle from the herd as it was assumed that all of the herd would have
to be destroyed and the appellants would receive compensation from

[page 485]
the government. A change in government policy, however, meant that the
department no longer would destroy the appellants’ stock nor pay
compensation. The appellants were not informed of the change in policy and,
with the department’s knowledge, allowed the diseased cattle to remain with
the herd. Due to their relying upon the advice of the department, the
appellants suffered economic loss as a result of the depreciation of the healthy
cattle in the herd, due to their exposure to the diseased cattle, and there being
no compensation payable. The Court of Appeal held that, by keeping silent as
to the change in policy, the department was in breach of its duty of care. The
statements made to the appellants, while true at the time, had, with the
department’s knowledge, become false and the duty of the department was to
correct the falsity.
See also Tipperary Developments Pty Ltd v Western Australia (2009) 258
ALR 124 at [205], where the court held that the respondent was under a
continuing duty to advise of any information that would impinge upon the
representation (respondent had represented to the appellant that a merchant
bank was ‘basically financially sound’).

Breach and Damage

19.53 Once it is established that a duty of care exists in the circumstances,
it is necessary for the plaintiff to prove the remaining elements of the
negligence action — breach of the duty of care and damage.

19.54 The standard of care owed would be the standard of a reasonable

person in the position of the defendant. In Fick v Groves [2010] QSC 89 at
[207], it was stated:
A person who is under a duty of care in making statements should take reasonable care to
ensure that the statement is correct. The standard of care depends upon the circumstances,
including the knowledge and experience that might reasonably be expected of a person in the
defendant’s position.

19.55 If the defendant is a professional, the civil liability provisions related

to the standards of professionals would not apply in some jurisdictions as
they do not apply to the giving of advice or warnings associated with the
professional service: see 11.73.

19.56 Whether the standard has been breached is a question of fact: see
Chapter 11.

19.57 The damage suffered by the plaintiff must have been caused by the
breach of duty and within the defendant’s scope of liability: see Chapter 12.
The negligent misrepresentation need not be the sole inducement that made
the plaintiff rely upon the misrepresentation: Henville v Walker (2001) 206
CLR 459; 182 ALR 37; March v E & M H Stramare Pty Ltd (1991) 171 CLR
506; 99 ALR 423; Fick v Groves [2010] QSC 89. The plaintiff must establish
that they did in fact rely upon the misrepresentation and that reliance caused
loss.

19.58 The pure economic loss that is suffered must be a reasonably

foreseeable consequence of the plaintiff’s reliance upon the
misrepresentation: South Australia v Johnson (1982) 42 ALR 161; Jazabas Pty
Ltd v City of Botany Bay Council (2000) ANZ ConvR 616: see Chapter 12.

[page 486]

Contributory Negligence
19.59 Despite the fact that the finding of the existence of a duty of care
depends upon the plaintiff’s reasonable reliance upon the misrepresentation,
contributory negligence may be raised in an action in negligent
misrepresentation. The issue of reliance in determining the existence of a
duty of care is one of law — whether it was reasonable for a person in the
plaintiff’s position to have relied on the misrepresentation. Reliance is also
considered, as a question of fact, when considering whether the
misrepresentation caused the plaintiff’s damage. It is in respect of the latter
that the defendant may allege contributory negligence. If the plaintiff failed to
protect their own position and this contributed to their loss, then the award
of damages may be reduced as allowed by the apportionment legislation: see
Chapter 13.

Remedies
19.60 If the damage resulting from the negligent misrepresentation arises
from the plaintiff entering into a transaction, the assessment of damages will
usually be the loss suffered by entering into that transaction.
In L Shaddock & Associates Pty Ltd v Parramatta City Council (1981) 150
CLR 225; 36 ALR 385, the appellants bought land that they would not have
purchased had the defendant informed them of the road-widening proposal.
Damages were claimed for the difference between the purchase price of the
land and its actual value, the expenses incurred while in ownership (for
example, council rates and insurance costs) and the cost of the conveyance.
The respondent argued against the claim for the associated expenses,
claiming that if there had been no road-widening proposal the appellants
would have still incurred those costs. The High Court disagreed, holding that,
as the appellants would not have purchased the land if they had knowledge of
the proposal, they were entitled to be compensated for the associated costs.
Mason J stated (at CLR 255; ALR 408):
The respondent is right in saying that the items were expenses to which the appellants would
have been subject had the land been free from the road-widening proposal. However, this does
not prevent the expenses from constituting recoverable damage. The judge found that, but for
the negligent mis-statement, the appellants would not have bought the land, the land being
useless for the purpose for which it was acquired. Consequently, the appellants’ loss includes,
not merely the diminution in value of the land, but also the expenses of acquisition and
retention for a reasonable time, expenses which would not have been incurred had the
respondent not been negligent. It was not suggested that the items in question fell outside the
boundary of foreseeability. The measure of recoverable damages for negligent mis-statement is
the amount of money necessary to restore the plaintiff to the position he was in before the
statement, subject to the loss being foreseeable.
19.61 Consequential loss may be recovered if it is not too remote, for
example loss of profits. However, if the plaintiff claims damages for loss of
opportunity, the plaintiff would have to prove that, but for being induced by
the defendant’s negligent misrepresentation to enter into the transaction, they
would have entered into another transaction that would have been profitable
and that the loss was reasonably foreseeable: South Australia v Johnson (1982)
42 ALR 161 at 170; Gates v City Mutual Life Assurance Society Ltd (1986)

[page 487]

160 CLR 1 at 13; 63 ALR 600 at 608. It must be established that the lost
opportunity was of real value.
In Stocks v Retirement Benefits Fund Board [2007] TASSC 8, the plaintiffs
relied upon misrepresentations of the defendant as to the leasing of a new
shopping centre and suffered loss due to the failure of their store, leading to
bankruptcy. The court awarded damages for the cost of the fit-out, rent and
legal costs associated with the lease, as well as damages for the labour of the
plaintiffs, wasted due to the misrepresentations (Carlton v Pix Print Pty Ltd
[2000] FCA 337), and general damages for vexation and distress.

Limitation Period
19.62 As a claim in negligent misrepresentation is generally a claim for
damages for pure economic loss, the claim must be brought within six years
of the action accruing in all jurisdictions, except the Northern Territory,
which specifies three years: Limitation Act 1985 (ACT) s 11(1); Limitation
Act 1969 (NSW) s 14(1)(b); Limitation Act 1981 (NT) s 12(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). See Chapter 14.
 In Commonwealth v Cornwell (2007) 229 CLR 519; 234 ALR 148, the High
Court noted that an action in negligence accrues when the plaintiff suffers
damage: at [5]. In that case, the plaintiff alleged that he had relied upon
incorrect advice provided to him concerning his eligibility for membership to
a superannuation fund in 1965. The court held that the damage accrued when
the plaintiff retired and, therefore, he had six years from retirement to bring
the action.

19.63 If the misrepresentation leads the plaintiff into entering into a

contract and the benefit to be acquired is less than represented, then the loss
is suffered upon entering into the contract and the time limitation period
would commence upon that date: Francis v Whatson [1994] 2 Qd R 584.

4 Deceit (Fraudulent Misrepresentation)

19.64 As noted in 19.2, although a plaintiff who had suffered pure
economic loss due to reliance upon a misrepresentation originally could not
seek damages through an action in negligence, if fraud could be proven an
action lay in deceit: Derry v Peek (1889) 14 App Cas 337.

19.65 Although the writ of deceit was recognised from the 13th century, it
was limited to particular kinds of fraud, for example, fraud on the court. It
was extended in the 14th century to cover cases of misrepresentation in
situations in which a bargain had been struck and as a means of enforcing
representations as to quality. Nevertheless, different courts still held opposing
views as to the fundamental nature of deceit well into the 19th century:
contrast the views of the Exchequer in Cornfoot v Fowke (1840) 6 M & W 358;
151 ER 450 and those of the Queen’s Bench in Fuller v Wilson (1842) 3 QB 58.
It was not until 1789 that a fraudulent misrepresentation appears to have
been actionable as an independent tortious basis of liability: Pasley v Freeman
(1789) 3 Term Rep 51; 100 ER 450.
 [page 488]

19.66 Also, various nominate and innominate torts may depend upon
some fraudulent misrepresentation, not as an independent basis of liability,
but as a mode of committing that tort. For example, in Wilkinson v Downton
[1897] 2 QB 57, the shock was intentionally inflicted as a result of the telling
of a lie and grounded an innominate action on the case. Similarly, a
misrepresentation may procure consent to personal physical contact which
may be actionable as trespass to person, or possession of goods may be
obtained by fraud in circumstances where the interference is actionable as a
conversion.

19.67 The High Court summarised the elements of the tort of deceit in
Magill v Magill (2006) 226 CLR 551; 231 ALR 277 at [114]:
a misrepresentation of fact by the defendant;
the defendant had knowledge of the falsity (scienter);
the defendant intended reliance;
the plaintiff acted in reliance upon the misrepresentation; and
the plaintiff suffered damage.

19.68 The ultimate onus of proof remains on the plaintiff throughout, but
an evidentiary burden may fall on the defendant to displace inferences to be
drawn from the facts: Gould v Vaggelas (1985) 157 CLR 215; 56 ALR 31.

Misrepresentation of Fact
19.69 There must be a misrepresentation of fact: Pasley v Freeman (1789)
3 Term Rep 51; 100 ER 450; Edgington v Fitzmaurice (1885) 29 Ch D 459 at
483: see 19.4.

19.70 The High Court considered when silence may be sufficient to

support an action in deceit in Krakowski v Eurolynx Properties Ltd (1995) 183
CLR 563; 69 ALJR 629. The plaintiffs purchased a commercial strata title unit
from the defendant. The defendant knew that the plaintiffs were purchasing
the unit for investment purposes and that they required a financially strong
tenant and a return on their investment of 10 per cent. The purchase price
was calculated on the basis of 10 times the annual rental value of the unit. Just
prior to the plaintiffs’ agreement to purchase the unit, the defendant signed a
lease agreement for the unit with third parties for a period of six years with
two options to renew. The lease document specified an annual rental of
$156,000 and the plaintiffs consequently paid $1,560,000 for the unit.
During the course of negotiations with the plaintiffs, the defendant failed
to disclose to the plaintiffs that it had concluded a collateral agreement with
the lessee which had formed the basis of the lessee’s agreement to enter into
the leasehold agreement. Most importantly, the collateral agreement was not
annexed to the sale contract despite the lease itself being annexed and the
lease containing a ‘whole agreement’ clause. Pursuant to this collateral
agreement, the lessor allowed the lessee a three-month rent-free period and a
lump sum payment to them of $156,000 for fitting out and stocking of the
premises. When apportioned over the period of the lease, this incentive
reduced the rental return of the unit by more than $300,000. The majority of
the High Court (Brennan, Deane, Gaudron and McHugh JJ) held that the
misrepresentation of fact, constituted by the silence as to the existence of the

[page 489]

collateral agreement, was that the lease annexed to the sale contract contained
the whole of the agreement between the defendant and the tenant.

19.71 In Magill v Magill (2006) 226 CLR 551; 231 ALR 277, the appellant
sued the respondent in deceit, arguing that the respondent had falsely
represented that he was the father of two children when they were married.
At first instance, the appellant was awarded damages for deceit, but the
decision was reversed by the Court of Appeal of the Supreme Court of
Victoria. The High Court was unanimous in holding that the tort of deceit
was not established. It was held that the presentation of the birth registration
documents by the respondent for signature by the appellant did not amount
to misrepresentation. Instead, the deceit was the failure of the respondent to
disclose her infidelity. Therefore, the issue was whether the respondent’s
silence amounted to a misrepresentation. It was held that there was no
obligation of disclosure between spouses of sexual infidelity and, therefore,
there was no actionable misrepresentation.

Scienter (Knowledge of Falsity)

19.72 The misrepresentation must be known to be untrue by the
representor or made recklessly, meaning not caring whether it is true or false
at the time it is made: Derry v Peek (1889) 14 App Cas 337 at 374; Civil Service
Co-Op Society of Victoria Ltd v Blyth (1914) 17 CLR 601; 20 ALR 161. If the
plaintiff asserts that the defendant knew the misrepresentation to be false, the
defendant must have actual knowledge; it is not sufficient to prove that the
defendant had the means to know that it was false: Nocton v Lord Ashburton
[1914] AC 932.

19.73 Mere carelessness is not sufficient to satisfy this element: Angus v

Clifford [1891] 2 Ch 449. In Middleton v Aon Risk Services Australia Ltd
[2008] WASCA 239 at [43], McLure J stated: ‘Negligence, even gross
negligence, is not fraud.’
In Wood v Balfour (2011) 15 BPR 29,773, the appellants bought the
respondent’s house. The pre-contract pest inspection report noted that there
was termite damage but after settlement, extensive termite damage was
discovered that required significant remedial work. The appellants alleged
that the respondents had concealed the termite damage and therefore had
fraudulently misrepresented the property. The court pointed out that the
appellants had to prove not that the respondents knew of the termite damage,
which clearly they did as they had had work carried out, but that they knew
that there was termite damage that compromised the structural integrity of
the property: at [60]. Further, it would have to be proven that the respondents
knew of the damage, were conscious of it at the time of the sale of the
property and chose not to disclose it for the purpose of deceiving the
appellants: at [70]. The court was not satisfied that this level of consciousness
existed on the part of the respondents and the action failed.

19.74 The meaning to be attached to ambiguous statements has been held

to be that intended by the representor rather than an objective test: John
McGrath Motors (Canberra) Pty Ltd v Applebee (1964) 110 CLR 656;
Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563; 69 ALJR 629. The
motive of the representor is not relevant: Langridge v Levy (1837) 2 M & W
519; 150 ER 863.

[page 490]

19.75 If a statement is true when made, but later found by the representor
to be false, this fact should be communicated to the representee to avoid the
possibility of a misrepresentation of fact through changed temporal
circumstances: Davies v London & Provincial Marine Insurance Co (1878) 8
Ch D 469; Jones v Dumbrell [1981] VR 199.

19.76 There are other special rules which may require particular
representors (for example, fiduciaries and company directors) to disclose
certain information. Beach Petroleum NL v Johnson (1993) 115 ALR 411
involved, inter alia, a claim in respect of deceit. Von Doussa J confirmed that
a company is vicariously liable for the tortious acts of its directors when they
are acting in the scope of their authority as its agents, even if the knowledge of
the directors is not imputed to the company: applying Lloyd v Grace Smith &
Co [1912] AC 716; Lloyds Bank Ltd v Chartered Bank of India, Australia and
China [1929] 1 KB 40; Bradford Third Equitable Benefit Building Society v
Borders [1941] 2 All ER 205.

19.77 It is often the case that representations are made on the behalf of
another party in commercial transactions. A principal cannot be liable for the
deceit of an agent unless one of them was guilty of conscious falsehood:
Armstrong v Strain [1952] 1 KB 232. Similarly, a principal may be liable if
they authorise an innocent agent to make a statement which the principal
knows is false or where the principal chooses an agent with a view to the
agent making a false statement: Cornfoot v Fowke (1840) 6 M & W 358;
Ludgater v Love (1881) 44 LT 694. Where the innocent acts of several agents
combine to produce a misrepresentation of fact, a composite liability may be
imposed: W B Anderson & Sons Ltd v Rhodes (Liverpool) Ltd [1967] 2 All ER
850.

Intended Reliance
19.78 The representation must be made with the intention that the
plaintiff should act upon it: Bradford Third Equitable Benefit Building Society
v Borders [1941] 2 All ER 205 at 211. This does not require that the statement
be made directly to the plaintiff: Langridge v Levy (1837) 2 M & W 519; 150
ER 863; T J Larkins & Sons v Chelmer Holdings Pty Ltd [1965] Qd R 68.
However, a representation to an earlier owner cannot be invoked by a
subsequent purchaser: Gross v Lewis Hillman Ltd [1970] Ch 445. The
representor need not have intended a specific individual to rely upon the
representation, provided the plaintiff is one of the class which the representor
intended should rely upon it.
In Commercial Banking Co of Sydney Ltd v R H Brown & Co (1972) 126
CLR 337, woolgrowers who had sold wool to a dealer thought it prudent to
obtain a report on the purchaser’s creditworthiness before they delivered the
consignment. They requested their bank to make inquiries about the buyer
and the manager of their bank did so, in writing, to the defendant’s branch in
Perth, where the buyer banked. A favourable reply, in confidence and without
responsibility, was received. One of the plaintiffs required later confirmation
when a carrier arrived to pick up the wool clip and rang the manager of his
local bank, who gave the account. The opinion of the manager of the
defendant’s bank in Perth misrepresented the buyer’s financial position and
was never honestly held. The wool was delivered, the buyer could not pay and
the vendors lost the value of the wool delivered.

[page 491]

They succeeded in deceit before the High Court. On the question of intended
reliance, Menzies J stated (at 343):
A person who makes a false and fraudulent misrepresentation is only liable to the persons to
whom it is made, that is, to the persons whom it is intended should act upon it: Peek v Gurney
(1873) LR 6 HL 377. It is not necessary for liability that the misrepresentation should be made
directly, it can be made to one, to be passed on to another; it is not necessary that it should be
made to a particular person; it can be made to a group to which the plaintiff belongs so that the
plaintiff is one of those intended to be deceived. The representation must, however, in one way
or another, be made to the plaintiff to induce him to act upon it.

Disclaimers
19.79 On the effect of a disclaimer, Menzies J stated in Commercial
Banking Co of Sydney Ltd v R H Brown & Co (1972) 126 CLR 337 at 344:
Once it be found, therefore, as it was found, that the defendant contemplated the
communication of its opinion to customers of the Cranbrook branch of the Bank of New South
Wales, the customers to whom it was communicated were representees of the defendant. It
follows that, in so far as the disclaimer could protect the defendant, it would, but it could not
protect it against fraud.

Gibbs J agreed, distinguishing Hedley Byrne [1964] AC 465 on the basis

that it was a case of fraud before the court, not a case of negligence. His
Honour held that a representor who fraudulently gives information with the
intention that it be relied on by another, could not avoid liability by claiming
that the information is for the use of the recipient only: at 346; see also Felton
v Johnson (2000) Aust Torts Reports ¶81-559 at 63,712.

Reliance
19.80 The plaintiff must have acted to his or her detriment in reliance
upon the representation: Horsfall v Thomas (1862) 1 H & C 90; 158 ER 813;
Edgington v Fitzmaurice (1885) 29 Ch D 459; Burrows v Rhodes [1899] 1 QB
816. It is the sense in which the representee understood the representation
which is relevant to the determination of whether the representee was
induced to act in reliance upon it to his or her detriment: Krakowski v
Eurolynx Properties Ltd (1995) 183 CLR 563; 69 ALJR 629. A representee’s
knowledge of the falsity may, but will not necessarily, defeat the claim:
Sinclair v Preston [1970] WAR 186. It is no defence that the plaintiff had
means at his or her disposal to check the accuracy of the representation: S
Pearson & Son Ltd v Dublin Corporation [1907] AC 351.
In Magill v Magill (2006) 226 CLR 551; 231 ALR 277, the High Court held
that the appellant had to establish that he had relied upon the alleged
representations of the respondent that he was the father of her children.
Because the appellant was married to the respondent and had attended the
births of the children, he assumed he was their father. The court held that
there was no evidence that he believed he was the father because of the birth
registration documents.

19.81 The representation need not be the sole inducement but it must be a
contributing factor: Gould v Vaggelas (1985) 157 CLR 215; 56 ALR 31.

[page 492]

Damage
19.82 The damage suffered by the plaintiff must be caused by their
reliance upon the misrepresentation. As stated in Briess v Woolley [1954] AC
333 at 353:
The tort of fraudulent misrepresentation is not complete when the representation was made. It
becomes complete when the representation — not having been corrected in the meantime — is
acted upon by the representee.

19.83 There is some doubt as to whether the loss must be foreseeable. In

Gould v Vaggelas (1985) 157 CLR 215 at 224; 56 ALR 31 at 37, Gibbs CJ stated
that it was ‘unnecessary for present purposes to consider whether damages for
deceit can be recovered even if they were not reasonably foreseeable, and I
would leave open that important question’.

Remedies
19.84 The remedy for deceit is primarily compensatory damages: Smythe v
Reardon [1949] QSR 74; Mafo v Adams [1970] 1 QB 548; Broome v Cassell &
Co Ltd [1972] AC 1027. The measure of damages is the loss suffered as a
result of the deceit, including consequential loss: Doyle v Olby (Ironmongers)
Ltd [1969] 2 QB 158; Ted Brown Quarries Pty Ltd v General Quarries (Gilston)
Pty Ltd (1977) 138 CLR 645; Gates v City Mutual Life Assurance Society Ltd
(1986) 160 CLR 1. For example, in Archer v Brown [1985] QB 401, the interest
on a loan entered into to finance the transaction that resulted from the deceit
was recoverable.

19.85 There is no clear authority whether the loss must be the reasonably
foreseeable consequence of the deceit to be compensated. There are
references to the foreseeability of damage in some cases, but also references to
the wider ‘direct consequences’. See, for example, Palmer Bruyn & Parker Pty
Ltd v Parsons (2001) 208 CLR 388 at [64]–[65].

19.86 Where the representation is made to a purchaser, damages represent

the difference between the purchase price and the actual value of the goods at
the time of purchase: Holmes v Jones (1907) 4 CLR 1692; South Australia v
Johnson (1982) 42 ALR 161 at 170. This contrasts with damages awarded in
contract for the loss of bargain.

19.87 It is possible to recover loss of profits in an action in deceit if they

represent actual damage directly flowing from the fraudulent representation;
for example, the defendant falsely represents to a purchaser of a business that
the defendant vendor will not trade in competition and the plaintiff
purchaser’s profits are diminished as the vendor does trade: East v Maurer
[1991] 2 All ER 733; [1991] 1 WLR 461.

19.88 In Aldersea v Public Transport Corporation (2001) 3 VR 499 at 507,

it was held that damages for physical injury, psychological injury and distress
may be recovered in an action in deceit if the requirements of causation and
remoteness are met. See limits on recovery for mental harm: Civil Law
(Wrongs) Act 2002 (ACT) s 35; Civil Liability Act 2002 (NSW) s 31.

19.89 Aggravated damages may be available in the appropriate

circumstances: Archer v Brown [1985] 1 QB 401 at 423; Broken Hill
Proprietary Co Ltd v Fisher (1984) 38 SASR 50 at 66. Not surprisingly, having
regard to the nature of the tort, based as it is upon fraud,

[page 493]

exemplary damages may also be available: Musca v Astle Corporation Pty Ltd
(1988) 80 ALR 251 at 268.

19.90 Any contributory negligence on the part of the plaintiff is not

relevant in assessing damages in an action in deceit: Standard Chartered Bank
v Pakistan National Shipping Corporation (Nos 2 and 4) [2002] 3 WLR 1547;
Nocton v Lord Ashburton [1914] AC 932.
Limitation Period
19.91 In an action in deceit, the limitation period commences upon the
discovery of the fraud or at the time that the plaintiff could have discovered
the fraud with reasonable diligence: Limitation Act 1985 (ACT) s 33;
Limitation Act 1969 (NSW) s 55; Limitation Act 1981 (NT) s 42; Limitation
of Actions Act 1974 (Qld) s 38; Limitation Act 1974 (Tas) s 32; Limitation of
Actions Act 1958 (Vic) s 27; Limitation Act 2005 (WA) s 37. In South
Australia, there is no postponement of the time period in cases of fraud
except in relation to actions to recover land or rent: Limitation of Actions Act
1936 (SA) s 25: see Chapter 14, especially 14.46.

5 Statutory Actions for Misrepresentation

19.92 Actions in tort for misrepresentation are now very rare due to the
availability of remedies under the consumer protection legislation. As
observed by the High Court in Magill v Magill (2006) 226 CLR 551; 231 ALR
277 at [116], common law liability for misrepresentation has been eclipsed by
the legislation.
The concept that has made the tortious law of misrepresentation nearly
redundant is that of misleading or deceptive conduct. The reason for the
preference for the statutory action can be explained by the fact that proving
that a misrepresentation was misleading or deceptive is much easier than
proving the ‘special relationship’ required in negligent misrepresentation or
the scienter and intent to cause loss for actions in deceit. Indeed, actual
deception need not be established as the provision prohibiting misleading or
deceptive conduct includes such conduct that is ‘likely to mislead or deceive’:
Competition and Consumer Act 2010 (Cth) Sch 2, s 18; Taco Co of Australia
Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 202. Further, remedies under the
consumer protection legislation are more flexible than those available under
the common law.
19.93 Originally, the prohibition against misleading or deceptive conduct
was contained in s 52 of the Trade Practice Act 1974 (Cth) and its state and
territory equivalents in the fair trading legislation. The Trade Practices Act
1974 (Cth) was replaced by the Competition and Consumer Act 2010 (Cth)
containing in Sch 2 the Australian Consumer Law (ACL). The ACL applies as
a law of the Commonwealth and as a law of each state and territory according
to the application provisions of the Competition and Consumer Act 2010
(Cth) (Pt XI) and the fair trading legislation: Fair Trading (Australian
Consumer Law) Act 1992 (ACT) Pt 2; Fair Trading Act 1987 (NSW) Pt 3;
Consumer Affairs and Fair Trading Act 1990 (NT) Pt 4; Fair Trading Act
1989 (Qld) Pt 3; Fair Trading Act 1987 (SA) Pt 3; Australian Consumer Law
(Tasmania) Act 2010 (Tas) Pt 2; Australian Consumer Law and Fair Trading
Act 2012 (Vic) Ch 2; Fair Trading Act 2010 (WA) Pt 3.

[page 494]

19.94 What was s 52 of the Trade Practices Act 1974 (Cth) is now
contained in s 18 of the ACL: Competition and Consumer Act 2010 (Cth) Sch
2. Section 18 provides:
A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or
is likely to mislead or deceive.

Person or Corporation
19.95 Section 18(1) refers to ‘person’ and when applied as a
Commonwealth law it will apply to the conduct of corporations. However,
the ACL as a Commonwealth law will apply to unincorporated individuals,
when using postal, telegraphic or telephonic services or radio or television
broadcasts: Competition and Consumer Act 2010 (Cth) s 6(3).

19.96 When applied as a law of a state or territory, the ACL will apply to
persons or corporations engaged in trade or commerce within the jurisdiction
or connected to the jurisdiction: Fair Trading (Australian Consumer Law)
Act 1992 (ACT) s 11; Fair Trading Act 1987 (NSW) s 32; Consumer Affairs
and Fair Trading Act 1990 (NT) s 31; Fair Trading Act 1989 (Qld) s 20; Fair
Trading Act 1987 (SA) s 18; Australian Consumer Law (Tasmania) Act 2010
(Tas) s 10; Australian Consumer Law and Fair Trading Act 2012 (Vic) s 12;
Fair Trading Act 2010 (WA) s 11.

19.97 As a corporation acts through its directors, servants and agents, if

acting on behalf of the corporation, the conduct is deemed to be that of the
corporation: Competition and Consumer Act 2010 (Cth) s 139B(2); Fair
Trading Act 1987 (NSW) s 87A; Consumer Affairs and Fair Trading Act (NT)
s 43; Fair Trading Act 1989 (Qld) s 95; Australian Consumer Law (Tasmania)
Act 2010 (Tas) s 28; Australian Consumer Law and Fair Trading Act 2012
(Vic) s 196; Fair Trading Act 2010 (WA) s 110. There is no equivalent
provision in the Australian Capital Territory or South Australian legislation.
Under the ACL, persons who are accessories to a contravention of the law
may be held liable: see the definition of ‘involved’ in the ACL s 2; Yorke v
Lucas (1985) 158 CLR 661; Butcher v Lachlan Elder Realty Pty Ltd (2004) 218
CLR 592.

19.98 In Google Inc v Australian Competition and Consumer Commission

(2013) 294 ALR 404, the respondent did not rely on accessorial liability and
argued that the appellant contravened s 52 of the Trade Practices Act 1974
(Cth) (now ACL s 18) by providing sponsored links on its internet search
engine that conveyed misleading or deceptive representations in respect of
four businesses. It was held:
The automated response which the Google search engine makes to a user’s search request by
displaying a sponsored link is wholly determined by the keywords and other content of the
sponsored link which the advertiser has chosen. Google does not create, in any authorial sense,
the sponsored links that it publishes or displays: at [68].

Therefore the appellant had not engaged in misleading or deceptive

conduct.

Trade or Commerce
19.99 To be subject to the Act, the ‘person’ who made the
misrepresentation must be engaged in trade or commerce. Section 2 of the
ACL defines ‘trade or commerce’ as:

[page 495]

(a) trade or commerce within Australia; or

(b) trade or commerce between Australia and places outside Australia;
and includes any business or professional activity (whether or not carried on for profit).

19.100 The phrase ‘trade or commerce’ has been given a wide meaning (Re
Ku-ring-gai Co-operative Building Society (No 12) Ltd (1978) 36 FLR 134) and
in Bevanere Pty Ltd v Lubidineuse (1985) 7 FCR 325; 59 ALR 334, it was noted
that most conduct of a corporation would be regarded as being in trade or
commerce.
Promotional activities fall within trade or commerce, as demonstrated by
Nixon v Slater & Gordon (2000) 175 ALR 15. In that case, a firm of solicitors
published a brochure promoting their expertise in the area of medical
negligence. On the front of the brochure was a picture of the plaintiffs, two
surgeons. The plaintiffs sued in defamation and for misleading or deceptive
conduct in breach of s 52 of the Trade Practices Act 1974 (Cth). The court
held that the firm had engaged in misleading or deceptive conduct and that
the promotion of the firm’s business was in trade or commerce.

19.101 As the definition includes professional activities, a solicitor or an

accountant providing advice, for example, would be within the operation the
ACL.
19.102 When the ACL is applied as a Commonwealth law, it does not
apply to financial services: Competition and Consumer Act 2010 (Cth) ss
131(1) and 131A.

Misleading or Deceptive Conduct

19.103 Whether the conduct complained of (in this case, a
misrepresentation) is misleading or deceptive is assessed objectively. French
CJ stated in Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304;
257 ALR 610 at [25]:
… that generally requires consideration of whether the impugned conduct viewed as a whole
has a tendency to lead a person into error … it involves consideration of a notional cause and
effect relationship between the conduct and the state of mind of the relevant person or class of
persons. The test is necessarily objective. [footnotes omitted]

Silence
19.104 Silence may be actionable under the ACL, as ‘conduct’ is defined to
include refusing to do an act which includes refraining from doing an act:
ACL s 2(2). The ACL does not impose an obligation of disclosure, but silence
will amount to misleading or deceptive conduct, if in the circumstances of the
case, the plaintiff had a reasonable expectation that the information would be
disclosed: Demagogue Pty Ltd v Ramensky (1992) 110 ALR 608.

Statements of fact, law and opinion

19.105 Section 18 is not restricted to representations of fact; statements of
fact and law are capable of being misleading, if inaccurate. The intention of
the representor in making the representation is not relevant; instead, the
effect of the representation upon the person to whom it is directed is relevant.

[page 496]
19.106 As for an opinion, it may be misleading or deceptive if it was not
actually held or there was no reasonable basis for the opinion: Global
Sportsman Ltd v Mirror Newspapers Ltd (1982) 2 FCR 82; Elders Trustee &
Executor Co Ltd v EG Reeves Pty Ltd (1987) 78 ALR 193 at 242; Havyn Pty Ltd
v Webster (2005) 12 BPR 22,837.

Future matters
19.107 In relation to statements as to future matters, for example
predictions, s 4 of the ACL provides:
(1) If:
(a) a person makes a representation with respect to any future
matter (including the doing of, or the refusing to do, any act);
and
(b) the person does not have reasonable grounds for making the
representation;
the representation is taken, for the purposes of this Schedule, to be
misleading.

19.108 The representor must establish that they had reasonable grounds
for making the statement about the future matter, otherwise they are deemed
not to have had reasonable grounds: ACL s 4(2); Sykes v Reserve Bank of
Australia (1998) 158 ALR 710; James v ANZ Banking Group Ltd (1986) 64
ALR 347 at 372. This reverses the onus of proof, but the plaintiff must still
prove that they relied on the representations and that damage resulted.

Disclaimers
19.109 A disclaimer will be ineffective to a claim under s 18 of the ACL
unless, when considered in light of all of the circumstances, the disclaimer is
evidence that the plaintiff did not rely on the misleading statement: Lezam
Pty Ltd v Seabridge Australia Pty Ltd (1992) 35 FCR 535 at 557. It is also
possible that a disclaimer may break the chain of causation between the
defendant’s conduct and the damage claimed by the plaintiff: Campbell v
Backoffice Investments Pty Ltd (2009) 238 CLR 304; 257 ALR 610.
The High Court decision of Butcher v Lachlan Elder Realty Pty Ltd (2004)
218 CLR 592; 212 ALR 357 is a rare case where the disclaimer contained in an
advertising brochure for a property was held to be effective by a majority of
the High Court. In that case, a brochure included a survey plan of the
property which the purchasers relied upon as accurate before entering into a
contract to buy the property. The purchasers sued the real estate agent that
prepared the brochure, as it was engaged in trade or commerce. A majority
held that the disclaimer was effective when the circumstances were taken into
account, as it made it clear to the purchasers that the plan provided in the
brochure was not provided by the real estate agent but by a third party: at
[50]–[51].3

Remedies
19.110 The primary remedy for breach of s 18 of the ACL is damages.
Section 236(1) provides:

[page 497]

If:
(a) a person (the claimant) suffers loss or damage because of the conduct of another
person; and
(b) the conduct contravened a provision of Chapter 2 or 3;
the claimant may recover the amount of the loss or damage by action against that other
person, or against any person involved in the contravention.

Although s 18 does not require a plaintiff to have suffered loss for there to
be a contravention, in order to be entitled to damages under s 236, there must
be some form of loss or damage caused by the defendant’s conduct. The
damages claimed by the plaintiff must be the result of the misleading or
deceptive conduct: Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494.

19.111 In assessing damages under the consumer protection legislation

the High Court had stressed that analogies with the principles of assessment
of contract, tort or equity may be helpful, but courts were not bound by those
principles when assessing damages: Murphy v Overton Investments Pty Ltd
(2004) 204 ALR 26 at [44]; I & L Securities Pty Ltd v HTW Valuers (Brisbane)
Pty Ltd (2002) 210 CLR 109; 192 ALR 1 at [25]. However, the courts usually
applied the principles of tort for misrepresentation when assessing damages:
Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1; Kizbeau Pty
Ltd v W G & B Pty Ltd (1995) 184 CLR 281.

19.112 The High Court decisions made it clear that it would be very rare
for any contributory negligence of the plaintiff to result in a reduction of
damages: Henville v Walker (2001) 206 CLR 459; 182 ALR 37; I & L Securities
Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109; 192 ALR 1.
However, amendments were made to the former Trade Practices Act 1974
(Cth) in 2004 to allow contributory negligence to be taken into account. This
is now reflected in s 137B of the Competition and Consumer Act 2010 (Cth)
which allows a court to reduce damages for a claimant’s own lack of
reasonable care.

19.113 The plaintiff may seek damages from the person whose conduct
was misleading or deceptive or any person who was involved in the
contravention of s 18: ACL s 2 definition of ‘involved’.

19.114 Exemplary damages are not available: ACL s 236. See Nixon v
Philip Morris (Aust) Ltd (1999) 95 FCR 453.

Limitation Period
19.115 A plaintiff seeking damages for a contravention of s 18 must bring
the action within six years after the day on which the cause of action accrued:
ACL s 236(2).
The cause of action arises upon the plaintiff suffering loss as a result of the
misleading or deceptive conduct: Wardley Australia Ltd v Western Australia
(1992) 175 CLR 514; 109 ALR 247. The reckoning of the accruing of the
action may depend upon the transaction entered into in reliance of the
misleading or deceptive conduct: Wardley Australia Ltd v Western Australia
(1992) 175 CLR 514; 109 ALR 247.

[page 498]

19.116 The time limitation is a condition of the remedy and therefore the
onus lies upon the defendant to prove that the claim of the remedy is out of
time. There is no provision in the Act to extend the time period, nor can a
plaintiff resort to the state or territory limitation of actions legislation: Keen
Mar Corporation Pty Ltd v Labrador Park Shopping Centre Pty Ltd (1988)
ATPR ¶40-853; Jekos Holdings Pty Ltd v Australian Horticultural Finance Pty
Ltd [1994] 2 Qd R 515.

Further Reading
R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis
Butterworths, Sydney, 2013, Chs 13 and 23.
H Luntz, D Hambly, K Burns, J Dietrich and N Foster, Torts: Cases and
Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2012, Ch 16.

1. See J Stapleton, ‘Comparative Economic Loss: Lessons from Case-law Focused “Middle Theory”’
(2002) 50 UCLA Law Review 531 at 558–9.
2. For a discussion of the liability of statutory authorities for the provision of information in the
 modern context, see S Christensen, W Duncan and A Stickley, ‘Shifting Paradigms of Government
Liability for Inaccurate Information’ (2008) 15 eLaw Journal 185.
3. See S Christensen, W Duncan and A Stickley, ‘Avoiding Responsibility for Misleading Brochures
— Is it Simply a Matter of Disclaimer?’ (2008) 16 APLJ 24.
[page 499]
 Chapter 20

Vicarious Liability and Non-

Delegable Duties

1 Introduction
20.1 Generally, the various tortious actions require the proof of fault on
the part of the defendant. For example, to be successful in any trespass action,
the defendant must have intentionally or negligently committed the
interference. In negligence, a plaintiff cannot be compensated unless the
defendant is at fault, that is, they have failed to exercise the standard of care
required by the law.

20.2 One of the functions of torts is to transfer the loss from the victim to
the wrongdoer: see Chapter 1. In contrast to this function and the concept of
fault, the principle of vicarious liability imposes the liability for tortious
conduct on a party who is not at fault themselves.

20.3 Often linked to vicarious liability is the concept of the non-delegable

duty, particularly in employment scenarios. A duty that is recognised as non-
delegable extends a defendant’s liability in that it imposes a duty to ensure
that reasonable care is taken by others, imposing liability for the conduct of
another. The concept of the non-delegable duty has been described as a
‘disguised form of vicarious liability’: New South Wales v Lepore; Samin v
Queensland; Rich v Queensland (2003) 212 CLR 511; 195 ALR 412 at [152]
per Kirby J.1 At the heart of both doctrines is the notion of control.
 2 Vicarious Liability
20.4 Vicarious liability imposes liability upon a party for a tort committed
by another, despite the fact that the party who is vicariously liable may not
have been at fault. The liability arises from the relationship between the
wrongdoer and the party who is vicariously liable. Some legislation imposes
vicarious liability: see, for example, Partnership Act 1892 (NSW) s 10(1)
(partners of a firm are liable for any wrongful act or omission of another
partner acting in the ordinary business of the firm).

[page 500]

20.5 Vicarious liability is purely a policy device to extend liability that

developed in the late 17th century in England. The policy grounds that
support vicarious liability are:
It allows a plaintiff to be compensated by a defendant which is
financially viable.
A defendant who employs others in order to advance its own
enterprise should be under a corresponding liability for the losses
occurring in the pursuit of that enterprise: New South Wales v Lepore;
Samin v Queensland; Rich v Queensland (2003) 212 CLR 511; 195 ALR
412 at [202] and [316]–[317]; Hollis v Vabu Pty Ltd (2001) 207 CLR 21;
181 ALR 263 at [40]; Bazley v Curry (1999) 174 DLR (4th) 45 at [34]–
[35].
It promotes loss distribution: New South Wales v Lepore; Samin v
Queensland; Rich v Queensland (2003) 212 CLR 511; 195 ALR 412 at
[306].
It is an incentive for defendants to exercise control over how their
enterprises are carried out to minimise future loss or injury to third
parties.
 See Darling Island Stevedoring & Lighterage Co Ltd v Long (1957) 97 CLR
36 at 56–7; London Drugs Ltd v Kuehne and Nagel International Ltd [1992] 3
SCR 299 at 338–40; Bazley v Curry (1999) 174 DLR (4th) 45 at [58]; Hollis v
Vabu Pty Ltd (2001) 207 CLR 21; 181 ALR 263 at [42].

20.6 The relationship of employer and employee gives rise to vicarious

liability. As noted in Scott v Davis (2000) 204 CLR 333; 175 ALR 217 at [230],
vicarious liability derives from medieval notions of headship of households,
based on an assumption of control by the master over a servant, a wife or a
child. Principles developed that limited a master’s liability to particular acts
that he had authorised or ratified. The Industrial Revolution led to further
changes and, by the 19th century, a master was held liable for the acts of his
servant committed in the course of employment. This principle continues to
apply today between employers and employees.
In Lister v Hesley Hall Ltd [2001] 2 WLR 1131; [2002] 1 AC 215 at [14],
Lord Steyn noted:
Vicarious liability is legal responsibility imposed on an employer, although he is himself free
from blame, for a tort committed by his employee in the course of his employment. Fleming
[The Law of Torts, 9th ed, Law Book Co, 1998, pp 409–10] observed that this formula
represented “a compromise between conflicting policies: on the one end, the social interest in
furnishing an innocent tort victim with recourse against a financially responsible defendant; and
on the other, a hesitation to foist undue burden on business enterprise”.

Employer and Employee

20.7 For an employer to be vicariously liable it must be established that:
the wrongdoer is an employee of the employer;
the employee committed a tort; and
the tort was committed within the employee’s course of employment.

Employee
20.8 It is important to make a distinction between an independent
contractor and an employee as an employer is only liable for the tortious
conduct of an employee committed

[page 501]

in the course of employment (Broom v Morgan [1953] 1 QB 597; Darling

Island Stevedoring & Lighterage Co Ltd v Long (1957) 97 CLR 36) but not for
the tortious conduct of an independent contractor: Stevens v Brodribb
Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 43; 63 ALR 513 at 531; Northern
Sandblasting Pty Ltd v Harris (1997) 188 CLR 313; 146 LR 572; Hollis v Vabu
Pty Ltd (2001) 207 CLR 21; 181 ALR 263; Leichhardt Municipal Council v
Montgomery (2007) 230 CLR 22; 233 ALR 200; Sweeney v Boylan Nominees
Pty Ltd (2006) 226 CLR 161; 227 ALR 46.

20.9 It is not always obvious as to whether the wrongdoer is an

independent contractor (under a contract for services) or an employee (under
a contract of service). The term used by parties to describe their relationship
is not definitive of the legal nature of that relationship, since a court must
conclude the nature as a matter of law: Narich Pty Ltd v Commissioner of
Payroll Tax [1983] 2 NSWLR 597; (1983) 50 ALR 417. Also, if the relationship
has been characterised for another legal purpose, that characterisation will
not necessarily apply when considering vicarious liability. In Hollis v Vabu
Pty Ltd (2001) 207 CLR 21; 181 ALR 263, the New South Wales Court of
Appeal had previously classified the cyclists as independent contractors in
relation to a taxation decision, but the High Court classified the cyclists as
employees when considering the issue of vicarious liability for the negligence
of a courier. See also Ace Insurance Ltd v Trifunovski (2011) 284 ALR 489,
where the contract described the insurance sales agents as independent
contractors but the court held they were in fact employees.

20.10 In order to distinguish an employee (contract of service) from an

independent contractor (contract for services), various tests have been
developed by the courts.

20.11 Control test Initially, the factors that determined whether a person
was an employee were whether:
the person was employed to do work for the employer (Hewitt v
Bonvin [1940] 1 KB 188); and
the person engaged was subject to the control of the employer as to the
manner in which the work was undertaken: Mersey Docks and Harbour
Board v Coggins & Griffith (Liverpool) Ltd [1947] AC 1.
In Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561, the High Court
stressed that in relation to the control test, the lawful authority to command
(in that case, an acrobatic performer) was the significant feature, rather than
the actual exercise of control through specific commands.

20.12 Organisation test The traditional control test was found to be

unsatisfactory as the only way to determine who was an employee. The
organisation test developed as an alternative. If the worker was part of the
employer’s organisation, was their work subject to control by the employer as
to where and when, but not necessarily how, the work was to be carried out?
In Stevenson, Jordan & Harrison Ltd v MacDonald & Evans [1952] 1 TLR 101
at 111, it was found that:
One 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 this work is done as an integral part of the business;

[page 502]

whereas, under a contract for services, his work, although done for the business, is not
integrated into it but is only accessory to it.

20.13 In Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at

27–8; 63 ALR 513 at 519–20, Mason J was critical of the organisation test,
opining that legal authority to control was more relevant in determining the
nature of the relationship. The organisation test was not generally applied in
Australia, but, for an example of its application, see Albrighton v Royal Prince
Alfred Hospital [1980] 2 NSWLR 542 at 557.

20.14 Multi-facet test The current approach of the courts in determining

whether a worker is an employee or an independent contractor involves a
consideration of a range of factors: Stevens v Brodribb Sawmilling Co Pty Ltd
(1986) 160 CLR 16; 63 ALR 513; Hollis v Vabu Pty Ltd (2001) 207 CLR 21;
181 ALR 263. Not every factor will be relevant in every case, nor will all be
given the same weight — control remains the central element in determining
the relationship.

20.15 In Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; 63
ALR 513, the sawmilling company operated a hardwood sawmill in Victoria
and conducted logging operations under licence from the State Forests
Commission. The company’s practice was to engage and allocate persons to
different areas. It engaged ‘fellers’ to fell trees, ‘sniggers’ to push or pull felled
logs to loading ramps, constructed by the sniggers, and to load the logs onto
trucks, as well as ‘truckers’ who drove the loaded trucks to the sawmill. The
company employed a ‘bush boss’ to oversee logging operations but not the
actual manner of the work. The sniggers and truckers supplied and used their
own vehicles, determined their hours of work and were paid on the volume of
timber delivered to the mill. There was no guarantee of work and they could
seek other work if weather or other circumstances prevented mill operations.
The company had engaged Gray to snig and load logs using his own tractor
and Stevens to truck logs. While Gray was loading logs onto Stevens’ truck, a
log was dislodged and rolled on to Stevens, causing severe personal injuries.
Stevens sued Gray and the company.
The trial judge awarded damages after finding both Gray and Stevens were
employees and that Gray was negligent in moving the logs. The Victorian Full
Court upheld the company’s appeal but dismissed Gray’s appeal. Both
Stevens and Gray appealed to the High Court, which held that neither the
injured trucker nor the snigger Gray were employees so there could be no
vicarious or personal liability as employer, but that, nevertheless, the
sawmiller owed a general common law duty of care based upon the degree of
proximity. However, in the view of the majority, there was no breach of the
duty.
Mason J (with whom Brennan J was in general agreement) stated (at CLR
24; ALR 517):
A prominent factor in determining the nature of the relationship between a person who engages
another to perform work and the person so engaged is the degree of control which the former
can exercise over the latter. It has been held, however, that the importance of control lies not so
much in its actual exercise, although clearly that is relevant, as in the right of the employer to
exercise …

But the existence of control, while significant, is not the sole criterion by which to gauge
whether a relationship is one of employment. The approach of this court has been to regard it
merely as

[page 503]

one of a number of indicia which must be considered in the determination of that question.
Other relevant matters include, but are not limited to, the mode of remuneration, the provision
and maintenance of equipment, the obligation to work, the hours of work and provision for
holidays, the deduction of income tax and the delegation of work by the putative employee.

20.16 In Hollis v Vabu Pty Ltd (2001) 207 CLR 21; 181 ALR 263, the
respondent conducted a business of delivering parcels and documents in the
Sydney area. The appellant was injured when knocked down by a courier on a
bicycle wearing a jacket identifying the respondent’s business. At trial, it was
held that the couriers employed by the respondent were independent
contractors and, therefore, the respondent was not vicariously liable for the
negligence. The Court of Appeal agreed with this classification, persuaded by
the fact that the couriers provided their own bicycles and bore the expense of
maintaining them.
 The High Court allowed the appeal, determining that the couriers were
employees. The factors identified as relevant included:
There was no negotiation between the couriers and the respondent as
to the rates of remuneration.
Deductions from the couriers’ pay for insurance and such could not be
negotiated.
The respondent allocated the work with no bidding for individual jobs
by the couriers and the couriers could not refuse the job.
The respondent assumed all responsibility as to the direction, training,
discipline and attire of its couriers.
The couriers were not providing skilled labour or labour that required
special qualifications.
The respondent provided the couriers with items of equipment that
remained the property of the respondent.
The couriers had to wear the livery of the respondent.
The High Court held that the respondent was in control of the couriers,
not merely in relation to incidental or collateral matters. The fact that the
couriers provided and maintained their own bicycles was not necessarily
contrary to an employer–employee relationship as the cost was not
substantial. Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ stated that
the Court of Appeal ‘fell into error in making too much of the circumstances
that the bicycle couriers owned their own bicycles’: at [47].

20.17 McHugh J also allowed the appeal, finding that the couriers were not
employees but that the respondent was liable for the negligence on policy
grounds: at [93]. His Honour stated (at [72]):
Rather than attempting to force new types of work arrangements into the so-called
employee/independent contractor “dichotomy” based on medieval concepts of servitude, it
seems a better approach to develop principles concerning vicarious liability in a way that gives
effect to modern social conditions. As I pointed out in Burnie Port Authority v General Jones Pty
Ltd ((1994) 179 CLR 520 at 585) and reiterated in Scott v Davis ((2000) 175 ALR 217 at 243), the
genius of the common law is that the first statement of a common law rule or principle is not its
 final statement. The contours of rules and principles expand and contract with experience and
changes in social conditions. The law in this area has been and should continue to be
“sufficiently flexible to adapt

[page 504]

to changing social conditions” (Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at
28–9 per Mason J).

See also Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161; 227 ALR
46, where the High Court held that a mechanic was an independent
contractor of the respondent, not an employee. This conclusion was based
upon the evidence that:
the mechanic supplied his own tools and equipment;
the respondent did not control the way the mechanic worked;
the mechanic worked for other businesses;
the mechanic invoiced the respondent for the hours he worked and the
parts he supplied; and
the mechanic maintained his own workers compensation and public
liability insurance.
Other jurisdictions have expanded the application of vicarious liability
beyond the relationship of employer and employee. In the United Kingdom,
there must be a relationship ‘sufficiently analogous to employment’
(Woodland v Essex County Council [2013] UKSC 66 at [3]) or ‘akin to
employment’: E v English Province of Our Lady of Charity [2013] QB 722 at
[18]. Canada has moved away from the requirement of an employer–
employee relationship, instead focusing on whether there is a relationship
between the plaintiff and defendant that is sufficiently close to make a claim
for vicarious liability appropriate: KLB v British Columbia (2003) 2 SCR 403
at [19]. In New Zealand, relationships outside of employment have been
applied to vicarious liability. For example, the Crown was held to be
vicariously liable for the torts committed by foster parents in S v Attorney-
General [2003] 3 NZLR 450 at [64], despite the fact that there was no
employment-like relationship and no remuneration involved.

Specific cases
20.18 Hospital staff Professional medical staff were initially held not to be
employees of hospital authorities because of an absence of control, but
doctors, radiologists, matrons and nurses have now been held to be
employees: Roe v Minister of Health [1954] 2 QB 66; [1954] 2 All ER 131;
Samios v Repatriation Commission [1960] WAR 219; Cassidy v Ministry of
Health [1951] 2 KB 343; Gold v Essex County Council [1942] 2 KB 293.
However, a specialist merely using the hospital’s premises would not be an
employee.

20.19 Armed forces and public servants Members of the armed forces
are not servants of the Crown (Commonwealth v Quince (1944) 68 CLR 227),
unless engaged in ordinary civilian-type activities in time of peace: Groves v
Commonwealth (1982) 150 CLR 113; 40 ALR 193. In Commonwealth v
Connell (1986) 5 NSWLR 218, the Commonwealth was held to be vicariously
liable for an assault committed by a member of the armed forces on a fellow
member during a training expedition.

20.20 At common law, police service personnel are not servants of the
Crown for the purpose of imposing liability on the state: Enever v The King
(1906) 3 CLR 969; Irvin v Whitrod (No 2) [1978] Qd R 271; Griffiths v Haines
[1984] 3 NSWLR 653. This has been

[page 505]

modified by legislation: Australian Federal Police Act 1979 (Cth) s 64B (the
Federal Police provide the police service in the Australian Capital Territory);
Law Reform (Vicarious Liability) Act 1983 (NSW) s 8; Police Administration
Act 1978 (NT) s 148C; Police Service Administration Act 1990 (Qld) s 10.5;
Police Act 1998 (SA) s 65; Police Service Act 2003 (Tas) s 84; Victoria Police
Act 2013 (Vic) s 74; Police Act 1892 (WA) s 137. Under the Commonwealth,
New South Wales, the Northern Territory and Queensland legislation, the
state is jointly liable with the officer; elsewhere the state is liable alone.
For the legislation to apply, the police officer must have been acting in their
capacity as an officer at the time. For example, in Peat v Lin [2005] 1 Qd R 40,
the three police officers were off duty at a nightclub when the plaintiff was
stabbed. It was argued that the officers were in breach of their duty of care by
failing to prevent the breach of the peace. The court held that s 10.5 of the
Police Service Administration Act 1990 (Qld) did not apply to make to state
of Queensland liable as at the time the officers were not acting in their
capacity of police.

20.21 The Commonwealth may be vicariously liable for tortious acts of its
public servants: Oriental Foods (Wholesalers) Co Pty Ltd v Commonwealth
(1983) 50 ALR 452 (Commonwealth vicariously liable for negligence of
customs officer). However, if the employee was carrying out an independent
duty and does so negligently, the Commonwealth will not be liable: Little v
Commonwealth (1947) 75 CLR 94 at 114; Oceanic Crest Shipping Co v Pilbara
Harbour Services Pty Ltd (1986) 160 CLR 626; 66 ALR 29. This exception of
‘independent discretion’ applies if the employee was performing a duty
imposed by either the common law or by statute. If the performance of the
duty is subject to the control of the employer, the exception will not apply:
Cubillo v Commonwealth (2001) 112 FCR 455; 183 ALR 249 at [289].

20.22 This principle has been subject to much criticism and it has been
recommended that it should be abolished: see the Australian Law Reform
Commission (ALRC) report, The Judicial Power of the Commonwealth: A
Review of the Judiciary Act 1903 and Related Legislation,2 and the Queensland
Law Reform Commission (QLRC) report, Vicarious Liability.3 The principle
has been abrogated in New South Wales and South Australia: Law Reform
(Vicarious Liability) Act 1983 (NSW); Crown Proceedings Act 1972 (SA) s
10(2) (repealed by Crown Proceedings Act 1992 (SA), but the common law
principle was not revived due to the application of the Acts Interpretation Act
1915 (SA) s 16).

20.23 Borrowed employees Where an employee is lent by one employer

to another, as between each of the two employers, the employer who retains
control will be vicariously liable. In Kelly v Bluestone Global Ltd (in liq) [2016]
WASCA 90 at [58], it was explained that ‘the focus is on who has the right to
control the manner in which the act involving the negligence was done’. For
the purpose of vicarious liability, the ‘transferee is deemed to be the
employer’: at [56].
The onus is on the employer which lends the employee to show a transfer
of control: McDonald v Commonwealth (1945) 46 SR (NSW) 129; Mersey
Docks and Harbour Board v Coggins & Griffith (Liverpool) Ltd [1947] AC 1.
This burden of proof can only be discharged in ‘exceptional circumstances’:
Kelly v Bluestone Global Ltd (in liq) at [58].

[page 506]

20.24 In Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool)
Ltd [1947] AC 1, the appellant hired out mobile cranes with drivers. It
retained the power to dismiss the driver but the contract for hire provided
that the driver was to be an employee of the hirer. A driver was negligent and
injured a third party. By applying the control test, the House of Lords held
that the appellant was the employer at the time of the negligence, despite the
term in the contract of hire. See also Deutz Australia Pty Ltd v Skilled
Engineering Ltd (2001) 162 FLR 173 at [109]–[113], where the authorities
were reviewed and Ashley J summarised the framework of determining when
the responsibility for vicarious liability shifts from the general employer to the
temporary employer:
 … [F]irst, a general employer which seeks to shift vicarious responsibility for the negligence of
its servant onto another bears a heavy onus, which can only be discharged in quite exceptional
circumstances.

Second, transfer will less readily be inferred where the general employer provides man and
machine; and probably also where the general employer provides a skilled worker.

Third, transfer may be discerned where the hired worker, despite a machine being also hired
out, is bound to work the machine “according to the orders and under the entire and absolute
control” of the hirer.

Fourth, the contract made between general and temporary employers, so-called, cannot
determine whether there has been change of masters for purposes now under discussion.

Fifth, circumstances in which transfer may be discerned are the following:

Where the hirer can direct not only what the workman is to do, but how he is to do it.
Where the hirer “is entitled to tell the employee the way in which he is to do the work”.
Where the complete dominion and custody over the servant has passed from the one to
the other.
Where, by an agreement “the employer vests in the third party complete, or substantially
complete, control of the employee, so that he is not only entitled to direct the employee
what he is to do, but how he is to do it”.
Where it can be said that the hirer has such authority to control the manner in which the
worker does his work that it can be said that the worker is serving the hirer, not merely
serving the interests of the hirer.
Where it cannot be said that the reason that the worker subjected himself to control of
the so-called temporary employer as to what he did and how he did it was that his general
employer told him to do so.
Where it can be said that the servant was transferred, not merely the use and benefit of
his work. [footnotes omitted]

An example of where it was found that there had been a transfer of control
is Kelly v Bluestone Global Ltd (in liq) [2016] WASCA 90. The plaintiff was
injured at work by the negligence of another employee, Scanlan. Scanlan was
provided to the defendant employer by a labour hire company. The court
found that Scanlan had been hired after submission of his résumé for
consideration, and had been trained and supervised on the worksite. McLure
P applied the decision of Mersey Docks and Harbour Board v Coggins &
Griffith
 [page 507]

(Liverpool) Ltd, to hold that control had been transferred. See also Airworks
(New Zealand) Ltd v Vertical Flight Management Ltd [1999] 1 NZLR 641
(court held that the respondent merely paid the wages of the pilot and that
the appellant had control over all other aspects of the pilot’s work).

20.25 Ad hoc and gratuitous service The employer–employee

relationship may exist even though the relationship involves employment
which is gratuitous or infrequent: Brooke v Bool [1928] 2 KB 578 (landlord
vicariously liable for lodger’s negligence in lighting a match when assisting
landlord in detection of a gas leak).

20.26 Members of the clergy In Australia, vicarious liability applies to an

employer–employee relationship. In Trustees of the Roman Catholic Church
for the Archdiocese of Sydney v Ellis (2007) 70 NSWLR 565 at 573, it was left
unanswered ‘whether a priest in the Roman Catholic Church who is
appointed to a parish is an employee in the eye of the law or otherwise in a
relationship apt to generate vicarious liability in his superior’.

Course of Employment
20.27 If an employer–employee relationship exists, for the employer to be
vicariously liable for the tortious conduct, the conduct, must be in the course
of employment. An employer is not liable vicariously for independent
wrongful acts of employees: Bank of New South Wales v Owston (1879) 4 App
Cas 270; Bugge v Brown (1919) 26 CLR 110.

20.28 It is a question of fact whether conduct is within the course of

employment and depends upon the particular circumstances: Bugge v Brown
(1919) 26 CLR 110 at 121. As Kirby J pointed out in New South Wales v
Lepore; Samin v Queensland; Rich v Queensland (2003) 212 CLR 511; 195
ALR 412 at [322]:
… the determination of liability, on the basis of the connection between the [employer’s]
enterprise and the wrong, is inescapably a question of fact and degree.

Century Insurance Co Ltd v Northern Ireland Road Transport Board [1942]

AC 509 involved an employee employed to drive a petrol tanker truck to
deliver petrol to filling stations. While filling an underground tank at a filling
station, the employee struck a match to light a cigarette, causing an explosion
and a fire which destroyed the filling station. The House of Lords held that
the employee was acting within the course of his employment when he lit the
match, even though he was not employed to smoke cigarettes and to strike
matches. Viscount Simon LC commented (at 514):
[The employee’s] duty was to watch over the delivery of the spirit into the tank, to see that it did
not overflow, and to turn off the tap when the proper quantity had passed from the tanker. In
circumstances like these, ‘they also serve who only stand and wait’. He was presumably close to
the apparatus, and his negligence in starting smoking and in throwing away a lighted match at
that moment is plainly negligence in the discharge of the duties on which he was employed …

In Blake v J R Perry Nominees Pty Ltd (2012) 38 VLR 123, the appellant, an
employee of the respondent, was a driver of a fuel tanker waiting for a ship to
arrive which had been delayed. As he stood looking out to sea with another
driver, Jones, also an employee of the

[page 508]

respondent, suddenly struck him behind the knees causing severe back
damage. A majority of the Victorian Court of Appeal held that the
respondent employer was not vicariously liable. Harper JA stated (at [66]):
The action of Mr Jones in hitting [the appellant] and thus causing his 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. It was a spontaneous act of a prankster. No proper thought was given to it. The occasion for
the prank, and the form it took, may have arisen from the fact that Mr Jones was a truck driver
 employed by the defendant; but a prank of this kind, generated wholly within the confines of Mr
Jones’ brain, was not within the course of his employment as a truck driver.

20.29 The House of Lords in Credit Lyonnais Nederland NV (now known

as General Bank Nederland NV) v Export Credits Guarantee Department
[2000] 1 AC 486; [1999] 1 All ER 929 considered whether an employer was
vicariously liable for acts of an employee that, in themselves, did not amount
to a tort except when linked to other acts that were not performed in the
course of employment. It was held that conduct could not be combined to
impose liability upon an employer. The conduct that would impose liability
upon the employer must have occurred within the course of employment.

The frolic doctrine

20.30 If an employee takes an opportunity during employment to use time
or resources for personal purposes, the employer is not liable: Storey v Ashton
(1869) LR 4 QB 476. For example, using an employer’s property for personal
use without the employer’s authority or by substantially deviating from a
business route for private purposes may mean that the employee is not acting
within the course of employment at the time.
This is referred to as the ‘frolic doctrine’: Joel v Morison (1834) 6 Car & P
501 at 503; 172 ER 1338 at 1339 per Parke B.

20.31 If it is argued that the employee was on a frolic, both the purpose
and extent of the deviation must be considered. In Chaplin v Dunstan Ltd
[1938] SASR 245, the driver deviated slightly from route to get refreshment
from a hotel. During this deviation, he negligently collided with a motorcycle.
As his deviation was not altogether unconnected with his employment, the
employer was vicariously liable.
In N v Chief Constable of Merseyside Police [2006] EWHC 3041 (QB), an
off-duty police officer indicated to an employee of a nightclub that he would
take a woman who was unconscious from drink to the police station. Instead
he took her to his home and raped her. The court held that the Chief
Constable was not vicariously liable. The court stated (at [22]):
… the test is whether the police officer’s act was so closely connected with the acts he was
authorised to do that, for the purposes of liability, his wrongful act may fairly and properly be
regarded as made by him while acting in the ordinary course of his employment as a police
officer.

The evidence was that the officer had been planning such an attack for
months, and was ‘at all times pursuing his own misguided personal aims, or
in the classic phrase, “on a frolic of his own”’: at [31].

[page 509]

20.32 If the employee is engaged on the employer’s business and on

personal business at the same time, the employer may still be liable: Century
Insurance Co Ltd v Northern Ireland Road Transport Board [1942] AC 509;
Smith v Stages [1989] AC 928; 2 WLR 529.

Wrongful mode
20.33 An act or omission is still considered to be in the course of
employment if it is either a wrongful mode of committing an authorised act
or a wrongful act actually authorised by the employer. In New South Wales v
Lepore; Samin v Queensland; Rich v Queensland (2003) 212 CLR 511; 195
ALR 412 at [42], Kirby J stated:
To point to a vivid example of conduct by an employee that is not in the course of employment
is a useful method of elucidating the concept, but it may be of limited assistance in resolving
difficult borderline cases. It is clear that if the wrongful act of an employee has been authorised
by the employer, the employer will be liable. The difficulty relates to unauthorised acts. The best
known formulation of the test to be applied is that in Salmond, Law of Torts in the first edition
in 1907, and in later editions: an employer is liable even for unauthorised acts if they are so
connected with authorised acts that they may be regarded as modes — although improper
modes — of doing them, but the employer is not responsible if the unauthorised and wrongful
act is not so connected with the authorised act as to be a mode of doing it, but is an independent
act. [footnotes omitted]
20.34 In Bugge v Brown (1919) 26 CLR 110, the defendant grazier
employed a farmhand who was entitled, as part of the payment for his labour,
to be supplied with cooked meat. On one occasion, the farmhand was given
raw meat and was told by the defendant to cook it himself in a small hut on
the defendant’s land. The farmhand did not go to the hut, as directed, but lit a
fire in a different place on the defendant’s land. As a result of the farmhand’s
negligence, the fire spread to the plaintiff’s property where it caused damage.
The plaintiff alleged that the defendant was vicariously liable for the
farmhand’s negligence.
The High Court held, by majority, that the lighting of the fire by the
farmhand was within the scope of employment, and so the defendant was
vicariously liable for his negligence. The defendant had argued that the
farmhand had not been authorised to light a fire at the place in question, as he
had been instructed to cook his meat in the hut. Higgins J rejected this
argument (at 132):
The precise terms of the authority are not the criterion of liability: the function, the operation,
the class of act to be done by the employee, is the criterion whatever be the instructions as to the
time, the place, or the manner of doing the act. In other words, the employer is liable for damage
resulting from the negligent use of a fire on his land if he has sanctioned the lighting of a fire
anywhere on his property for the occasion.

Isaacs J stated (at 118–19):

A prohibition, either as to manner … or as to time … or place … or even as to the very act itself
… will not necessarily limit the sphere of employment so as to exclude the act complained of, if
the prohibition is violated … An instruction or a prohibition may, of course, limit the sphere of
employment. But to have that effect it must be such that its violation makes the servant’s
conduct complained of so distinctly remote and disconnected from his employment as to put
him quâ that conduct virtually in the position of a stranger. [footnotes omitted]

[page 510]

Prohibition by employer
20.35 An express prohibition by the employer of a wrongful act will not
necessarily be a defence to the employer if the employee’s act was still a mode
of doing what the employee was employed to do: Canadian Pacific Railway
Company v Lockhart [1942] AC 591; Conway v George Wimpey & Co Ltd
[1951] 2 KB 266; Kooragang Investments Pty Ltd v Richardson & Wrench Ltd
(1981) 36 ALR 142; Keppel Bus Co Ltd v Sa’ad bin Ahmad [1974] 1 WLR
1082; [1974] 2 All ER 700; Rose v Plenty [1976] 1 WLR 141.
In Kooragang Investments Pty Ltd v Richardson & Wrench Ltd, an
employee was held to be acting outside the scope of his employment when, in
breach of a prohibition to make property valuations for a group of
companies, he continued to make valuations while at the same time being a
director of one of the group’s member companies. Lord Wilberforce made the
following general remarks (at 145–6):
The manner in which the common law has dealt with the liability of employers for acts of
employees (masters for servants, principals for agents) has been progressive; the tendency has
been toward more liberal protection of innocent third parties. At the same time recognition has
been given by the law to the movement which has taken place from a relationship — akin to that
of slavery — in which all actions of the servant were dictated by the master, to one in which the
servant claimed and was given some liberty of action. In recent times it is common knowledge
that many employees supplement their wages by independent use in their own interests of the
skills, and sometimes the tools, which they use in their employment. These activities may be
above board and legitimate; or they may be surreptitious. Problems of authority and the course
of employment must be approached in the light of these realities.

Beyond cases of actual authority to commit a wrongful act, of which only rare instances appear,
to hold the employer liable for negligent acts was simple and uncontroversial. Negligence is a
method of performing an act: instead of it being done carefully, it is done negligently. So liability
for negligent acts in the course of employment is clear. Cases of fraud present at first sight more
difficulty: for if fraudulent acts are not directly forbidden, most relationships would carry an
implied prohibition against them. If committed for the benefit of the employer and while doing
his business, principle and logic demand that the employer should be held liable, and for some
time the law rested at this point.

20.36 In Rose v Plenty [1976] 1 WLR 141, there was an express prohibition
against employees using children in delivering milk. An employee used a
child to assist in delivering the milk. The court held that the prohibition
regulated the way in which the employee’s work was to be carried out and,
therefore, the employer was liable vicariously. Lord Justice Scarman explained
(at 148):
I think it is clear from the evidence that he was employed as a roundsman to drive his float
round his round and to deliver milk, to collect empties and to obtain payment. That was his job.
He was under an express prohibition—a matter to which I shall refer later—not to enlist the
help of anyone doing that work. And he was also under an express prohibition not to give lifts
on the float to anyone. How did he choose to carry out the task which I have analysed? He chose
to disregard the prohibition and to enlist the assistance of the plaintiff. As a matter of common
sense, that does seem to me to be a mode, albeit a prohibited mode, of doing the job with which
he was entrusted. Why was the plaintiff being carried on the float when the accident occurred?

[page 511]

Because it was necessary to take him from point to point so that he could assist in delivering
milk, collecting empties and, on occasions, obtaining payment.

In Phoenix Society Incorporated v Cavenagh (1996) 25 MVR 143, the

appellant employed a driver to drive a bus of other workers of the appellant.
The driver collided with the respondent’s motor vehicle when driving to
collect the drivers. At the time of the accident the driver was intoxicated,
against the express prohibition of the employer that no alcohol was to be
consumed. The court held that the express prohibition by the employer did
not limit the scope of the driver’s employment but regulated the conduct
within that scope and, therefore, the appellant was vicariously liable.
In McClure v Commonwealth [1999] NSWCA 392, infantrymen took home
a shell in breach of army regulations. A subsequent occupier of the house
found the shell and displayed it as an ornament until it was dropped and
exploded. It was held that the infantrymen were on a frolic of their own when
they took the explosive and the Commonwealth was not vicariously liable. See
also Lamble v Howl at the Moon Broadbeach Pty Ltd [2013] QSC 244 (bar
staff acting as security despite employer instructions not to get involved was
held to be within course of employment).
Intentional torts
20.37 Whether an intentional tort may be considered within the course of
employment is a difficult issue to determine. If an employer is to be
vicariously liable for an intentional tort of an employee, it must be
determined whether the intentional tort comes within the scope of
employment, that is, whether it was an act they were employed to carry out or
an act that was incidental to the employment: Deatons Pty Ltd v Flew (1949)
79 CLR 370 at 378. As can be seen from the cases, this is not an easy principle
to apply.
In Lloyd v Grace, Smith & Co [1912] AC 716, it was held that the employer
was vicariously liable for the fraud committed by the law clerk employee. In
Morris v C W Martin & Sons Ltd [1966] 1 QB 716, the dry-cleaning employer
was held to be vicariously liable for its employee stealing the mink coat of a
customer. In Deatons Pty Ltd v Flew (1949) 79 CLR 370, a barmaid threw a
glass of beer into the face of a customer. It was found that the conduct was
outside the course of the barmaid’s employment as the assault was ‘an
independent personal act which was not connected with or incidental in any
manner to the work which the barmaid was employed to perform’: at 379.
However, in Canterbury Bankstown Rugby League Football Club Ltd v Rogers
(1993) Aust Torts Reports ¶81-246, it was found that the illegal tackle used by
a player, which amounted to an assault, was done in order to defeat the other
opposing team and was committed in the course of employment.

20.38 In determining the liability of the employer, the motive of the

employee is important. If the intentional tort is committed in furthering the
employer’s interests and is incidental to the performance of work, the act will
be within the course of employment. If the act is done in the employee’s own
personal interests, the employer will not be vicariously liable: Deatons Pty Ltd
v Flew (1949) 79 CLR 370; Poland v John Parr & Sons [1927] 1 KB 236;
General Engineering Ltd v Kingston and St Andrew Corporation [1989] 1 WLR
69.
 [page 512]

20.39 In Ffrench v Sestili (2006) 98 SASR 28, the Full Court of the Supreme
Court of South Australia had to consider whether the defendant was
vicariously liable for her employee stealing money from the plaintiff. The
employee was the plaintiff’s carer. The plaintiff had given the carer her ATM
card and PIN so that the carer could buy groceries for her, accessing a daily
expenses account. However, the carer discovered the PIN for the plaintiff’s
main savings account and transferred money into the daily expenses account
before withdrawing the money for herself. Gray J held that the defendant was
vicariously liable as the misuse of the ATM card was sufficiently related to the
work that was authorised as part of the carer’s employment; therefore, there
was ostensible authority. This adopts the reasoning of Gummow and Hayne
JJ in the decision of Lepore.
In Re Margery Farlam Lawyers Trust Accounts (No 3) (2007) 96 SASR 337,
Willoughby, an employee of the law firm, misappropriated funds from the
trust accounts of which he was manager. On this issue of vicarious liability,
the court held (at [181]):
Willoughby’s fraudulent misappropriations were, of course, conducted for his own personal
gains. It is equally clear that he was performing an act which he was authorised to perform
properly. He was dealing with trust money which had been withdrawn for a purpose authorised
by a partner but, instead of applying the money withdrawn for the intended purpose, he had
applied it to his own purposes. It is, therefore, immaterial that he chose to perform his duties in
a way to benefit himself. The firm is, therefore, vicariously liable for the fraudulent activities of
Willoughby.

20.40 Care or control of children The issue of whether employers can be

vicariously liable for intentional torts committed by employees against
children in their care or control is a difficult issue. The barriers that victims of
child abuse experience in taking civil action were noted and
recommendations made in the Royal Commission into Institutional
Responses to Child Sexual Abuse, Redress and Civil Litigation Report: see
20.47.4
20.41 An examination of the cases demonstrates the uncertainty in this
area. In Lister v Hesley Hall Ltd [2001] 2 WLR 1311; [2002] 1 AC 215, the
House of Lords held that a school was vicariously liable for the sexual assaults
committed against students by the warden employed at its boarding house. It
was held that the acts were so closely connected to the warden’s employment
that it was fair and just that the school be held liable: at [28].
In Bazley v Curry (1999) 174 DLR (4th) 45, an operator of a residential care
facility for children was held to be vicariously liable for the assaults
committed by its employee against the children. It was reasoned that as the
operator intended to create a relationship between the children and its
employees similar to that of a parental relationship, the risk of such harm
materially increased and, therefore, the conduct was sufficiently related to the
employment. In Jacobi v Griffiths (1999) 174 DLR (4th) 71, children were
sexually assaulted by an employee of a club that organised recreational
activities for children, at the employee’s home. The club was found not to be
liable as the intentional torts were not sufficiently connected with the
employment. See also EB v Order of the Oblates of Mary Immaculate in the
Province of British Columbia [2005] 3 SCR 45.

[page 513]

20.42 Reference was made to the decisions of Lister v Hesley Hall Ltd and
Bazley v Curry in New South Wales v Lepore; Samin v Queensland; Rich v
Queensland (2003) 212 CLR 511; 195 ALR 412 (Lepore), when the High Court
had to consider whether the states of Queensland and New South Wales were
liable for the sexual assaults committed upon pupils by teachers employed by
them. Gleeson CJ pointed out that the overseas decisions did not suggest that,
in most cases, sexual abuse by a teacher would be within the course of
employment. His Honour stated (at [74]):
If there is sufficient connection between what a particular teacher is employed to do, and sexual
 misconduct, for such misconduct fairly to be regarded as in the course of the teacher’s
employment, it must be because the nature of the teacher’s responsibilities, and of the
relationship with pupils created by those responsibilities, justifies that conclusion. It is not
enough to say that teaching involves care. So it does; but it is necessary to be more precise about
the nature and extent of the care in question. Teaching may simply involve care for the
academic development and progress of a student.

20.43 In considering the application of vicarious liability to intentional

torts, the members of the High Court commented on the lack of a
comprehensive test: Lepore at [106], [196], [299] and [322]. A majority
(Gleeson CJ, Gaudron, Kirby, Gummow and Hayne JJ) agreed that it was
possible for an employer to be vicariously liable for an intentional tort of an
employee; however, there was no agreement as to the appropriate test.

20.44 Despite the High Court’s concerns about the lack of clear guidelines
for vicarious liability, there is still no coherent test to apply in determining
whether an intentional tort is within the course of employment. Gummow
and Hayne JJ held that a school could not be vicariously liable for an assault
by a teacher where there is no actual or ostensible authority from the school.
Gleeson CJ, Kirby and Gaudron JJ held that a school could possibly be liable
vicariously. McHugh J believed that the issue of vicarious liability did not
need to be decided, but commented that abuse by teachers would, in most
cases, be within the course of employment: at [166]. Only Callinan J rejected
outright the possibility that an intentional tort committed by an employee
could give rise to vicarious liability of the employer: at [342].5

20.45 Unsurprisingly, since the decision of Lepore, courts continue to

struggle with the issue of an assault committed by a teacher or a carer of a
child.6 Judicial comments include:
‘the difficulty arising out of the judgments in Lepore is distilling the
actual manner of application of the test of vicarious liability to the
particular case in question’ (Erlich v Leifer [2015] VSC 499 at [122]);
‘It is not easy to trace a certain and secure path through the dicta [of
 Lepore]. The safest course is to attempt to apply all of them to the facts
of the particular case at’ (Sprod v Public Relations Oriented Security Pty
Ltd (2007) Aust Torts Reports ¶81-921 at [54]);

[page 514]

‘Although the authorities set out various tests for deciding when an
employer should be held vicariously liable, these verbal formulae do
not provide any bright line rule for determining whether an employer
will, or will not, be held liable for harm caused to a third party by the
unauthorised acts of an employee’: Blake v JR Perry Nominees Pty Ltd
(2012) 38 VR 123 at [2].

20.46 The decisions of Erlich v Leifer [2015] VSC 49 and A, DC v Prince

Alfred College Inc [2015] SASCFC 161 preferred the approach of Gleeson CJ,
as supported by Gaudron and Kirby JJ in Lepore over the stricter test
propounded by Gummow and Hayne JJ.
The decision of Erlich v Leifer [2015] VSC 499 considered the issue of
vicarious liability of a school for the sexual abuse of a student by the principal
of the school. The defendant was the principal of an Ultra-Orthodox Jewish
school which followed exceptionally rigid and strict codes of behaviour in
accordance with the religious beliefs and practices. It was an unusual school
environment as the defendant was ‘invested with a high degree of power and
intimacy’ and she used ‘that power and intimacy to commit sexual abuse’: at
[128], quoting Gleeson CJ in Lepore (2003) 212 CLR 511; 195 ALR 412 at
[74]. The trial judge concluded that the defendant’s authority, the school
environment and the vulnerability of the plaintiff justified a finding that the
defendant’s conduct was within the course of her employment.
The issue of whether abuse was within the course of employment of a
boarding house master at a school was considered by the Full Court of the
South Australian Supreme Court in A, DC v Prince Alfred College Inc [2015]
SASCFC 161. After an extensive review of the case law, Gray J stated (at
[126]):
I consider that an employer may be vicariously liable for criminal conduct of its employee which
was committed solely for the employee’s own benefit and in breach of the contract of
employment. The test for liability is whether the employee’s conduct took place in the course of
employment. To determine whether the employee’s conduct took place in the course of
employment, the court may have regard to, relevantly:—
the actual and ostensible responsibilities, powers and duties of the employee;
whether the conduct occurred while the employee was acting in performance of the
contract of employment or the furtherance of the employer’s business;
whether the conduct occurred while the employee was apparently acting in performance
of the contract of employment or the furtherance of the employer’s business;
whether the employee was ostensibly exercising authority which the employer held the
employee out to have; and
whether the employer created or enhanced the risk of wrongdoing by the employee.

The court allowed the appeal and held that the respondent school was
vicariously liable for the assaults carried out by the house master if the
boarding school as having regard to all of the circumstances, as ‘[u]ltimately,
this was “one of those wrongful acts done for the servant’s own benefit for
which the master is liable when they are acts … which are committed under
cover of the authority the servant is held out as possessing or of the position
in which he is placed as a representative of his master”’: at [261], citing
Deatons Pty Ltd v Flew (1949) 79 CLR 370 at 381.

[page 515]

20.47 The Royal Commission into Institutional Responses to Child Sexual

Abuse, Redress and Civil Litigation Report, released in 2015, highlighted the
issues with the doctrine of vicarious liability applying to assaults committed
to children in educational and care environments. The report questions (at p
54):
If the law makes a solicitor liable for the criminal act of his clerk and the dry cleaner liable for
 the criminal act of his employee, could it be argued that it is not appropriate for institutions to
be liable for the criminal abuse of a child when in their care? If the protection of an individual’s
property is an important priority of the common law, the protection of children should at least
have the same priority. In our opinion the community would today expect that the care of
children should attract the highest obligation of the law.

Rather than legislate in respect of vicarious liability, the Report makes the
recommendation that legislation be enacted to impose liability in the form of
a non-delegable duty upon certain institutions for institutional child abuse:
see 20.67.

20.48 Security guards Many claims based on vicarious liability for

intentional torts involve security guards of clubs and hotels, where the injured
patron of the establishment attempts to sue the security firm or club or hotel
for the intentional tort of its employee. After a discussion of the various
approaches of the members of the High Court in Lepore (2003) 212 CLR 511;
195 ALR 412, Ipp JA in Sprod v Public Relations Oriented Security Pty Ltd
(2007) Aust Torts Reports ¶81-921 at [52] noted:
One thing seems to be clear according to the weight of authority. There are circumstances under
which an employer may be vicariously liable for unauthorised acts of an employee, even when
those acts are criminal and even when the employer has expressly instructed the employee not
to perform acts of that kind.

In Ryan v Ann Street Holdings Pty Ltd [2006] 2 Qd R 486, the Queensland
Court of Appeal held that the security guard who was employed by the
appellant was acting within the scope of his employment when he assaulted
the respondent. Applying the decision of Lepore, Williams JA stated (at [18]):
What emerges from the various judgments in Lepore is that the critical test, in broad terms,
involves a comparison between the intentional wrongful conduct and the type of conduct the
employee was engaged to perform. If there is a “sufficient connection” (Gleeson CJ at [40], [42],
[52], [54], [67] and [74]), or a “sufficiently close connection” (Kirby J at [315], [316], [319] and
[320]), or a “close connection” (Gaudron J at [131] and [132] and Gummow and Hayne JJ at
[213]), it will be open to the tribunal of fact to conclude that the wrongful act was done in the
course of employment, albeit in an improper mode. The connection is of critical importance,
and as Gummow and Hayne JJ noted at [217] where the opportunity for abuse becomes greater,
so the risk of harm increases. Essentially that means that where an employer clothes an
employee with authority which, if abused, could lead to great harm, then (the risk being known
 to the employer) the easier it will be for a court to draw the conclusion that the wrongful act was
done in the course of employment.

The court noted that the security guard was authorised to use force by its
employer, he had done so while on duty, on the premises of the employer and
was ostensibly acting within the course of his employment: at [34].

[page 516]

See also Zorom Enterprises Pty Ltd (in liq) v Zabow (2007) 71 NSWLR 354
at [26] (respondent assaulted by security guard employed by appellant),
where it was stated:
Although it may be important to identify the acts of an employee by reference to his or her
contractual duties, defined with some precision, that course will not always provide a ready
answer. Nor is it sufficient to say that the act must be done in the intended pursuit of the
employer’s interests or in the intended performance of the contract.

20.49 Other jurisdictions Just as other jurisdictions have moved away

from the requirement of an employer–employee relationship, there has also
been development in respect of the requirement of a tort being committed in
the course of employment. In the United Kingdom, the test is whether the act
of the tortfeasor is closely connected with their employment (Lister v Hesley
Hall Ltd [2002] 1 AC 215), while Canada has adopted a ‘enterprise risk’
theory that examines whether the enterprise and employment has materially
enhanced the risk: Bazley v Curry [1999] 2 SCR 534 at [41]. Both of these tests
are much broader than the requirement of course of employment.

Principal and Agent

20.50 The liability of a principal for the acts of an agent is not based on
vicarious liability, although it is often referred to as such. In the law of agency,
the agent stands in the place of the principal — the law sees the principal and
the agent as one party.7 As the courts refer to the vicarious liability of a
principal for an agent, it is necessary to consider the liability of a principal:
see, for example, Ramsey v Vogler [2000] NSWCA 260 where the members of
the Court of Appeal refer to the vicarious liability of the principal for the
agent.

20.51 There is no precise definition of the word ‘agent’ and merely because
a person calls themselves an agent, it does not necessarily mean that they are
one in the eyes of the law.

20.52 Under the law of agency, a principal is liable to third parties for the
acts of its agents that are done with actual or ostensible authority of the
principal: Credit Lyonnais Nederland NV (now known as General Bank
Nederland NV) v Export Credits Guarantee Department [2000] 1 AC 486;
[1999] 1 All ER 929; Petersen v Moloney (1951) 84 CLR 91. As stated by Lord
Macnaghten in Lloyd v Grace, Smith & Co [1912] AC 716 at 737, ‘the
principal is not liable for the torts or negligences of his agent in any matters
beyond the scope of the agency, unless he has expressly authorised them to be
done, or he has subsequently adopted them for his own use and benefit’.
In Aircraft Technicians of Australia Pty Ltd v St Clair; St Clair v Timtalla
Pty Ltd [2011] QCA 188 at [58], it was held:
… it is not sufficient to make A vicariously liable for the tortious negligence of B by designating
B as A’s agent. There must be something in the relationship between A and B, in the interaction
between them, to show that the designation is appropriate and apposite. It will not be enough to
show that B acted at A’s request and that the actions conferred a benefit on A. If A’s control over
B is to be the ingredient which establishes agency the evidence must show what degree of
control was, or could have been, exerted; the manner in which control was or could have been
exerted;

[page 517]

and the matters with respect to which control was or could have been exerted. Without some
such analysis the term “control” is devoid of meaning.
20.53 The joint judgment of Gleeson CJ, Gaudron, Gummow, Kirby and
Hayne JJ in Hollis v Vabu Pty Ltd (2001) 207 CLR 21; 181 ALR 263 stated that
the couriers were employees of the respondent. However, relying on many of
the same factors as the joint judgment, McHugh J held that the couriers were
agents of the respondent and, therefore, the respondent was liable: at [74]. His
Honour held that, at the time of the accident, the courier was carrying out a
task as the representative of the respondent and was acting within the scope
of authority conferred by the respondent. His Honour stated that it was more
appropriate to apply the agency principle recognised in Colonial Mutual Life
Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of
Australia Ltd (1931) 46 CLR 41; [1932] ALR 73.

20.54 A principal will be liable for the tortious conduct of an agent that
results in financial loss where the principal has expressly authorised the
conduct of the agent: Hewitt v Bonvin [1940] 1 KB 188. For example, in
Ramsey v Vogler [2000] NSWCA 260, fraudulent representations were made
by an agent, appointed by the owner of a business, to induce the plaintiffs to
buy the business. The owner of the business was found to be liable for the
fraudulent statements as they were made within the course of authority of the
agent.

20.55 A person who holds out another as possessing authority may be

liable also as principal for torts of the other committed as part of their
ostensible authority: Armstrong v Strain [1952] 1 KB 232; Trade Practices
Commission v Queensland Aggregates Pty Ltd (1982) 44 ALR 391. In Colonial
Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative
Assurance Co of Australia Ltd (1931) 46 CLR 41; [1932] ALR 73, it was held
that an insurance company was vicariously liable for the defamatory
statements made by its agent about a rival firm. The insurance company had
authorised the agent to approach prospective clients on its behalf and to make
observations to those clients as thought appropriate and, therefore, it was
liable for those statements.
20.56 The issue of whether the wrongdoer was an agent/representative or
independent contractor was also considered by the High Court in Sweeney v
Boylan Nominees Pty Ltd (2006) 226 CLR 161; 227 ALR 46. The appellant was
injured when the door of a refrigerator fell off its hinges. The respondent was
contractually responsible for maintaining the refrigerator which it had leased
to the occupiers of the service station where the incident took place. At trial, it
was held that the occupiers of the service station had not been negligent and
that the respondent was vicariously liable for the negligence of the mechanic
it had sent to service the refrigerator when it was reported that the door was
not closing properly. Although the mechanic was described as a ‘contractor’,
the trial judge held that he ‘was acting as a servant or agent of [the
respondent] with the authority and the approval of [the respondent] to
undertake the work that he did’: at [7]. The Court of Appeal allowed an
appeal by the respondent, holding that the respondent was not vicariously
liable for the mechanic’s negligence.
Before the High Court, the appellant relied upon the decision of Colonial
Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative
Assurance Co of Australia Ltd

[page 518]

(1931) 46 CLR 41; [1932] ALR 73, arguing that the mechanic was a
representative of the respondent. It was stated by the majority of the court
(Kirby J in dissent):
What is revealed is that like “agent”, the word “representative” and its cognate forms are used in
many different senses. It is necessary to distinguish between the different meanings. Saying that
B did what he or she did as the “representative” of A does not reveal, without definition of what
is meant, what was the relationship between the parties: at [16].

And:
… the wider proposition that underpinned the argument of the appellant in this case, that if A
“represents” B, B is vicariously liable for the conduct of A, is a proposition of such generality
 that it goes well beyond the bounds set by notions of control (with old, and now imperfect
analogies of servitude) or set by notions of course of employment: at [26].

Kirby J allowed the appeal, agreeing with the trial judge’s decision that the
mechanic was a representative of the respondent. His Honour stated (at [95]):
Whilst the rule in [Colonial Mutual Life Assurance Society Ltd v The Producers & Citizens
Cooperative Assurance Co of Australia Ltd] remains, it should be applied by this Court in
accordance with its terms. It is part of Australian law. Its terms apply in the present case. [The
mechanic] was the representative of [the respondent] which afforded him the means to
persuade others that he should be admitted to their premises, permitted to repair a refrigerator
placed there for which [the respondent] was responsible by lease and even allowed to receive
[the respondent’s] money and to give a receipt for what he received.

Owner of a motor vehicle

20.57 The ownership of a private or commercial motor vehicle may be
prima facie evidence that any driver was driving it for the purpose, and with
the authority, of the owner: Jennings v Hannan (No 2) (1969) 71 SR (NSW)
226.

20.58 At common law, a driver of a vehicle over which the owner retains
control is an agent of the owner, who becomes liable as principal for the
driver’s negligence: Soblusky v Egan (1960) 103 CLR 215. In Scott v Davis
(2000) 204 CLR 333; 175 ALR 217, the High Court held that the operation of
Soblusky v Egan should not be extended to impose vicarious liability upon the
owner of an aircraft for the negligence of the pilot. It was held that the pilot
was not the agent of the owner as the owner was in no position to assert
control over the manner in which the pilot flew the aeroplane. See also Frost v
Warner (2002) 209 CLR 509; 186 ALR 1 (being a registered controller of a
motor vessel under the Water Traffic Regulations (NSW) was not sufficient to
found liability vicariously) and Lloyd v Borg bht NSW Trustee and Guardian
(2013) 84 NSWLR 652 (owner of unregistered vehicle not vicariously liable
when de facto wife allowed inexperienced driver to drive).

20.59 The presumption of agency may be rebutted; mere permission to

use a car does not give rise to a relationship of agency: Pratt v Connolly (1994)
Aust Torts Reports ¶81-283. The hire of a vehicle does not attract to a hire car
firm the principles of vicarious liability simply because of ownership:
Lansdown v WTH Pty Ltd (1990) 10 MVR 355.

20.60 Legislation in respect of motor vehicle accidents has done away with
the need to prove agency if the damages being sought are for personal injury.
Compulsory third

[page 519]

party insurance ensures that anyone who suffers personal injury arising from
the use of a motor vehicle will be able to recover through the insurance agent
of the owner of the vehicle. See Road Transport (Third-Party Insurance) Act
2008 (ACT); 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 3, Div 2; Motor Vehicle (Third Party Insurance)
Act 1943 (WA). In the Northern Territory, the Motor Accidents
(Compensation) Act 1979 (NT) provides a no-fault scheme, replacing the
right to sue in tort: s 5.

3 Non-Delegable Duties
20.61 Alongside the principles of vicarious liability, the concept of the
non-delegable duty developed. A plaintiff may sue a defendant in negligence
even though the harm they suffered arose from the acts of a third party. In
these circumstances the plaintiff would argue that the defendant owed them a
non-delegable duty of care. A non-delegable duty is a duty to ensure that
reasonable care is taken by a third party. For a defendant to owe a non-
delegable duty it is necessary that a duty of care be owed and then it must be
determined whether that relationship gives rise to a non-delegable duty.

20.62 The common law imposes a non-delegable duty upon a defendant

who has undertaken to control people or the property of another who is
vulnerable: Kondis v State Transport Authority (1984) 154 CLR 672 at 687; 55
ALR 225 at 235; Burnie Port Authority v General Jones Pty Ltd (1994) 179
CLR 520 at 550–1; 120 ALR 42 at 62; Northern Sandblasting Pty Ltd v Harris
(1997) 188 CLR 313 at 361; 146 ALR 572 at 604; New South Wales v Lepore;
Samin v Queensland; Rich v Queensland (2003) 212 CLR 511; 195 ALR 412 at
[100].

20.63 Therefore, even though the defendant may delegate a task which is
part of the content of the duty owed, to a third party, the defendant remains
liable to the plaintiff, though it is the negligence of the third party which
causes harm to the plaintiff. The term ‘non-delegable’ refers to the inability of
the defendant to delegate liability, not the actual task: McDermid v Nash
Dredging & Reclamation Co Ltd [1987] AC 906 at 910.
If a duty is characterised as non-delegable, then the scope of that duty is
that not only must the defendant exercise reasonable care, they must also
ensure that those to whom they have delegated any aspect of their duty to
take reasonable care as well.

20.64 The law has recognised that certain relationships give rise to a non-
delegable duty but the categories are not closed: Kondis v State Transport
Authority (1984) 154 CLR 672; 55 ALR 225. The recognised non-delegable
duties are:
employers to employees;
school authorities to students;
hospitals to patients; and
occupier of premises to entrants.
 [page 520]

Employers
20.65 It is well established that an employer owes a duty of care to
employees and that the duty is non-delegable: Kondis v State Transport
Authority (1984) 154 CLR 672; 55 ALR 225; Czatyrko v Edith Cowan
University (2005) 214 ALR 349.
In Kondis v State Transport Authority, the plaintiff was injured during the
course of his employment with the defendant while dismantling a structure in
railway yards. The jib of a crane fell on him while it was being manually
extended by an independent contractor hired by the defendant. The plaintiff
sued the defendant employer, alleging that his injuries were caused by the
defendant’s negligence. The High Court held that the defendant was not
vicariously liable for the negligence of the independent contractor, but that it
was personally liable to the plaintiff for breach of the duty it owed to him. As
noted by Mason J (at CLR 687–8; ALR 235):
The employer has the exclusive responsibility for the safety of the appliances, the premises and
the system of work to which he subjects his employees and the employee has no choice but to
accept and rely on the employer’s provision and judgment in relation to these matters. The
consequence is that in these relevant respects the employee’s safety is in the hands of the
employer; it is his responsibility. The employee can reasonably expect therefore that reasonable
care and skill will be taken. In the case of the employer there is no unfairness in imposing on
him a non-delegable duty; it is reasonable that he should bear liability for the negligence of his
independent contractors in devising a safe system of work. If he requires his employee to work
according to an unsafe system he should bear the consequences.

In Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; 258 ALR 673 at
[21], the High Court stated:
An employer owes a personal, non-delegable, duty of care to its employees requiring that
reasonable care is taken. This is a more stringent obligation than a duty to take reasonable care
to avoid foreseeable risk of injury to a person to whom a duty is owed. While an employer is not
vicariously liable for the negligent conduct of an independent contractor, it may incur liability
where the negligent conduct occasions injury to its employee. This is because it will have failed
to discharge the special duty that it owes to its employees to ensure that reasonable care be
 taken, whether by itself, its employees or its independent contractors, for the safety of its injured
employee.

20.66 If an employer owes a non-delegable duty, the employer will not be

liable for the collateral negligence of its contractors: Padbury v Holliday &
Greenwood Ltd (1912) 28 TLR 494. In that case, it was held that for the
employer to be liable it must be established that the work itself gave rise to the
risk. If the ordinary performance of the work would not create a reasonably
foreseeable risk to the plaintiff, the negligent performance of that work is
generally not enough to impose liability upon the employer. However, in
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; 120 ALR
42, it was held that if the work is one of exceptional danger, the standard of
care is increased so that it may include acts that would otherwise be
considered collateral.

Schools
20.67 School authorities owe a non-delegable duty of care to students:
Commonwealth v Introvigne (1982) 150 CLR 258; 41 ALR 577; New South
Wales v Lepore; Samin

[page 521]

v Queensland; Rich v Queensland (2003) 212 CLR 511; 195 ALR 412. In
Ramsay v Larsen (1964) 111 CLR 16 at 28, Kitto J stated that ‘the school
authority undertakes not only to employ proper staff but to give the child
reasonable care’. In Commonwealth v Introvigne, a student was injured when
the top of a flagpole fell on him due to another student swinging on the
halyard. The accident occurred in the school grounds, prior to school. At the
time the teachers were at a meeting where the death of the principal was being
announced. The High Court held that the school was negligent by failing to
provide adequate supervision of the playground. Mason J stated (at CLR 273;
ALR 589):
The Commonwealth had undertaken a government function for the conduct of which it was
responsible, whether it employed its own teachers or arranged for teachers to be made available
to it by a state. The Commonwealth is therefore as liable for the acts and omissions of its
borrowed staff as it would have been for staff directly employed by it as teachers in schools
established by it.

In Lepore, the members agreed that the scope of the non-delegable duty
was to ensure that reasonable care was taken. Gaudron J stated (at [105]):
… to describe the duty of a school authority as non-delegable is not to identify a duty that
extends beyond taking reasonable care to avoid a foreseeable risk of injury. It is simply to say
that, if reasonable care is not taken to avoid a foreseeable risk of injury, the school authority is
liable notwithstanding that it engaged a “qualified and ostensibly competent” (Burnie Port
Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 550; 120 ALR 42 at 62) person to carry
out some or all of its functions and duties.

Kirby J noted (at [291]):

… the non-delegable nature of the duty was not designed, as I read the cases, to expand the
content of the duty imposed upon the superior party to the relationship, so as to enlarge that
duty into one of strict liability or insurance. It was simply a device to bring home liability in
instances that would otherwise have fallen outside the recognised categories of vicarious
liability. Introvigne is the case propounded as establishing such a non-delegable duty on schools.
Yet it is clear there from the reasons of Mason J that the scope of both forms of duty is the same:
“The Commonwealth is … as liable for the acts and omissions of its borrowed staff as it would
have been for staff directly employed by [it] as teachers in schools established by it.”
(Commonwealth v Introvigne (1982) 150 CLR 258 at 273; 41 ALR 577 at 589)

Hospitals
20.68 Hospitals owe a non-delegable duty to their patients: Samios v
Repatriation Commission [1960] WAR 219; Albrighton v Royal Prince Alfred
Hospital [1980] 2 NSWLR 542. The duty applies to not only residents of the
hospital but also outpatients: Roe v Minister of Health [1954] 2 QB 66; [1954]
2 All ER 131.

20.69 In Ellis v Wallsend District Hospital (1989) 17 NSWLR 553, it was

held that a non-delegable duty is not owed by a hospital to every person who
receives treatment. In that case, it was held that if a specialist used the
facilities of a hospital for a private patient, no duty was owed by the hospital
to ensure that the specialist exercised reasonable care. The important
relationship is that between the hospital and the patient, not the hospital and
the

[page 522]

doctor who attends the patient: at 600. See also Yepremian v Scarborough
General Hospital (1980) 110 DLR (3d) 513 at 581, per Houlden JA (in
dissent):
First, a general hospital may function as a place where medical care facilities are provided for the
use of a physician and his patient. The patient comes to the hospital because his physician has
decided that the hospital’s facilities are needed for the proper care and treatment of the patient.
This use of the hospital is made possible by an arrangement between the hospital and the
physician by which the physician is granted hospital privileges. Where a hospital functions as
merely the provider of medical care facilities, then, … a hospital is not responsible for the
negligence of the physician. …

Second, a general hospital may function as a place where a person in need of treatment goes to
obtain treatment. Here the role of the hospital is that of an institution where medical treatment
is made available to those who require it. … Does a hospital in these circumstances have the
duty to provide proper medical care to a patient? In my judgment, it does.

Owing a non-delegable duty, a hospital is expected to exercise reasonable

care and skill in the provision of diagnostic and treatment services, and also
ensure that hospital staff act with reasonable care: Ellis v Wallsend District
Hospital (1989) 17 NSWLR 553.

Occupiers of Premises
20.70 In Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR
520; 120 ALR 42, the owner of a building had retained an independent
contractor to do work on extensions to the building. The work involved
welding activities in close proximity to cardboard cartons containing isolite,
an insulating material which burned fiercely if brought into sustained contact
with flame. Due to the contractor’s negligence, sparks or molten metal fell on
the containers and caused the isolite to burn. The ensuing fire spread to an
area of the building occupied by a licensee and caused damage to its stock.
The majority justices, Mason CJ, Deane, Dawson, Toohey and Gaudron JJ,
held that the owner owed the licensee a non-delegable duty of care which
extended to ensuring that its independent contractor took reasonable care to
prevent the isolite being set alight as a result of the welding activities, and was
in breach of that duty. Accordingly, the owner was liable to the licensee in
negligence.
See also McVicar v S & J White Pty Ltd (t/as Arab Steed Hotel) (2007) 97
SASR 160 (plaintiff injured on defendant’s premise when cleaning, activity
held not to be inherently dangerous nor did the defendant undertake special
responsibility for the safety of the plaintiff); Thornton v Wollondilly Mobile
Engineering Pty Ltd [2012] NSWSC 621 (excavation and tree lopping not
considered to be inherently dangerous).

20.71 The non-delegable duty of an occupier may arise in relation to

activities undertaken on the property that cause injury to persons or goods
that are on that property, as in Burnie Port Authority v General Jones Pty Ltd
(1994) 179 CLR 520; 120 ALR 42, or to persons, goods or property that are
affected by the activities.
In AD & SM McLean Pty Ltd v Meech (2005) 13 VR 241, the respondent
was injured when a horse escaped from the property controlled by the
appellant onto an adjoining highway in a rural area. It was argued that the
appellant, as the occupier of the land, owed

[page 523]
a non-delegable duty of care to take reasonable care to ensure that animals on
the property were properly contained. Nettle JA gave the reasons for the
court, holding that the duty was non-delegable. Referring to the principles in
Kondis v State Transport Authority (1984) 154 CLR 672; 55 ALR 225; Burnie
Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; 120 ALR 42 and
Lepore (2003) 212 CLR 511; 195 ALR 412, his Honour stated (at [22]–[23]):
The agistment of horses on rural land is not “inherently dangerous” or dangerous in itself. Nor
without more could it be regarded as a “non-natural use” of the land which the occupier knows
to be “mischievous”. … But as the result in Burnie Port Authority shows, a defendant may be
liable in negligence as in breach of a non-delegable duty to take care to guard against injury the
result of an activity conducted on the land … Following the decision in Burnie Port Authority,
the question in each case is whether the combined effect of the magnitude of the foreseeable risk
of an accident occurring and the magnitude of the foreseeable potential injury or damage if an
accident does occur, is such that an ordinary person acting reasonably would consider it
necessary to exercise “special care” or to take “special precautions” in relation to it.

In this case I think that they would. On any analysis the agistment of horses on land abutting a
major multi-lane highway, like the Western Highway where it abuts St Anne’s Winery, is likely
to be dangerous for persons using the highway unless care is taken to confine the horses to the
land. Further, as it appears to me, the magnitude of foreseeable risk of an accident happening
and the magnitude of the foreseeable potential injury or damage in the event of a horse escaping
onto the highway and causing an accident are such that an ordinary person acting reasonably
would consider it necessary to exercise special care or to take special precautions to prevent the
horses’ escape onto the highway. In those circumstances I consider that Burnie Port Authority
dictates that the occupier of land which abuts such a highway and who permits others to agist
horses on the land may be held to owe to motorists passing on the highway by the property a
non-delegable duty to take reasonable care to prevent the horses escaping onto the highway.

An occupier’s non-delegable duty also includes a duty not to deprive a

neighbour’s land of support: Burnie Port Authority v General Jones Pty Ltd;
Bower v Peate [1876] 1 QBD 321; Llavero v Shearer [2014] NSWSC 1336. This
duty cannot be satisfied merely by hiring a competent independent
contractor to carry out the work that caused the loss of support. Such an
interference may also amount to a nuisance. See also 25.18.

Characteristics of a Non-Delegable Duty

20.72 The categories of non-delegable duties are not closed. If the
characteristics of the special relationship can be argued to impose a special
duty to ensure care is taken, the duty owed may be classified as non-delegable
in the circumstances.
In Kondis v State Transport Authority (1984) 154 CLR 672 at 687–8; 55
ALR 225 at 235, Mason J (with whom Dawson and Deane JJ agreed) stated:
[W]hen we look to the classes of case in which the existence of a non-delegable duty has been
recognized, it appears that there is 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 element in the special
relationship between the parties which generates a special responsibility or duty to see that care
is taken may be found in one or more of the several circumstances. The hospital undertakes the

[page 524]

care, supervision and control of patients who are in special need of care. The school authority
undertakes like special responsibilities in relation to the children whom it accepts into its care …
In these situations, the special duty arises because the person on whom it is imposed has
undertaken the care, supervision or control of the person or property of another or is so placed
in relation to that person or property as to assume a particular responsibility for his or its safety,
in circumstances where the person affected might reasonably expect that due care will be
exercised.

20.73 In Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR
520; 120 ALR 42, the High Court adopted the reasoning of Mason J in Kondis
v State Transport Authority, noting that the common element in cases where
a non-delegable duty is recognised is the central element of control: at CLR
550–1; 120 ALR 62; see also Northern Sandblasting Pty Ltd v Harris (1997)
188 CLR 313 at 350; 146 ALR 572 at 595–6.

20.74 In Northern Sandblasting Pty Ltd v Harris, Kirby J noted the

difficulty in identifying the circumstances that will rise to a non-delegable
duty. His Honour stated (at CLR 395; ALR 631):
Academic writers have been critical of the failure of the courts to explain more clearly the
precise characteristics of relationships said to justify the imposition of the exceptional non-
 delegable duty of care. Judges and commentators have admitted that it is not always easy to
identify the boundaries of the categories of non-delegable duty. Various criteria are nominated,
ranging from the superior capacity of the defendant to bear the risk of the mishap; the special
obligations which it is proper to attach to extra-hazardous activities; and the special dependence
or vulnerability of the person to whom the duty owed is not discharged. Each of these
considerations may be relevant in the case of particular categories accepted as falling within this
class. Whilst they help to describe the idea which lies behind the imposition of a “special” duty
of care, they do not define with precision the circumstances where the special duty will be
imposed by law.

20.75 Therefore, if a relationship does not fall within the recognised

categories of non-delegable duties, it will be necessary to establish that the
defendant exercises control over the situation and that, due to this control,
there is a reasonable expectation by the plaintiff that the defendant will ensure
that reasonable care will be taken.

Landlords
20.76 In Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313; 146
ALR 572, the respondent, who was the daughter of the tenants who leased a
residence from the appellant, was seriously injured when electrocuted. The
evidence was that the appellant had hired an electrician to fix a stove when
notified by the tenants that the stove was not working. The work was carried
out negligently by the licensed electrician, causing the respondent to be
electrocuted when she turned off a garden tap. The respondent sued the
appellant for:
breach of statutory duty under the residential tenancy legislation;
breach of the defendant’s personal duty because of the faulty earthing
system and the defective stove; and
breach of the defendant’s non-delegable duty owed in relation to the
repair of the stove.
A majority of 5:2 held that the duty owed by the defendant as landlord was
not non-delegable and, therefore, the defendant was not directly liable for the
negligence of the
 [page 525]

independent contractor that it had engaged to carry out the electrical work on
the demised property. It was held that the defendant’s duty went no further
than taking reasonable care in engaging a competent contractor. The duty of
care that arises when a task to be performed does not carry an inherent risk of
damage to person or property of another may be discharged by engaging a
competent independent contractor to perform it.

20.77 As to whether the task involves an inherent risk of damage is a

question of fact that is to be determined in light of common experience. The
fact that the negligence of the electrician might foreseeably cause injury to the
respondent or some other member of the family or visitors was not enough to
impose a non-delegable duty of care on the defendant.
In Jones v Bartlett (2000) 205 CLR 166; 176 ALR 137, although the non-
delegable duty of a landlord was not in issue, members of the High Court
noted that a landlord’s duty is delegable. The duty imposed on a landlord
would be discharged upon delegation of a task to a competent party.

Statutory authority
20.78 An example of an attempt to argue that a duty was non-delegable is
the High Court decision of Leichhardt Municipal Council v Montgomery
(2007) 230 CLR 22; 233 ALR 200. In that case, the respondent was injured
when he was walking on a public footpath controlled and maintained by the
appellant. The appellant had engaged an independent contractor to carry out
work on the footpath. The contractor had laid a cover and artificial grass over
a pit in the footpath, but the cover was broken, so when the respondent
stepped onto it, the cover gave way and the respondent fell into the pit,
injuring his knee. The lower courts held that the appellant was liable for the
negligence of the employees of the contractors. The New South Wales Court
of Appeal stated:
 … where a road authority engages a contractor to do work on a road used by the public, such as
to involve risk to the public unless reasonable care is exercised, the road authority has a duty to
ensure reasonable care is exercised; and the road authority will be liable if the contractor does
not take reasonable care. However, the road authority will not be liable for casual or collateral
acts of negligence by the contractor: Leichhardt Municipal Council v Montgomery [2005]
NSWCA 432 at [23].

On appeal to the High Court, the appellant argued that the lower courts
had erred in finding that it owed a special duty and, further, that the duty
owed by a council was an ordinary duty to take reasonable care to prevent
injury. As Kirby J indicated, the issue was whether the appellant owed the
respondent a non-delegable duty of care arising from the relationship of a
public roads authority and a road user: at [49]. Referring to the decision of
Kondis v State Transport Authority (1984) 154 CLR 672; 55 ALR 225, the
court held that the appellant did owe a duty of care but that the duty could
not be characterised as non-delegable. Kirby J noted (at [123]), that, although
there was significant dependence by the respondent upon the appellant, there
was not the same vulnerability as existed in the recognised non-delegable
duty relationships such as hospital and patient, employer and employee or
school authority and student.

20.79 In S v Secretary, Department of Immigration and Multicultural and

Indigenous Affairs (2005) 143 FCR 217; 216 ALR 252, the Commonwealth
conceded that it owed

[page 526]

a non-delegable duty of care to detainees suffering from psychiatric illnesses.

In its discussion of non-delegable duties, the Federal Court commented that
the duty owed by the Commonwealth to immigration detainees known to be
suffering psychiatric illness is analogous to the recognised non-delegable
duties of hospital and patient and gaoler and prisoner. It stated (at [209]–
[211]):
 The characteristics the present relationship shares with that of hospital and patient are not only
the element of control and the assumed responsibility for the health care of the detainees; there
is as well the exaggerated vulnerability of the class of detainees at significant risk of mental
illnesses. …

The further characteristic shared with the gaoler-prisoner relationship grows out of the nature
of the control exercised over detainees. They are without freedom and without capacity to
provide for their own needs, special or otherwise. Their’s [sic] is a special dependence but
particularly so if they suffer from mental illness.

The duty imposed on the Commonwealth must accommodate that special dependence and the
peculiar vulnerability to which detainees known to suffer mental illness are exposed. The duty
must also take account of the very distinctive outsourcing arrangements the Commonwealth has
been prepared to accept for the provision of health care services.

The court held that the Commonwealth had breached its duty by failing to
ensure that the level of medical care available to the detainees was reasonably
designed to meet not only their health care needs but also their psychiatric
care. The psychiatric service provided by the contractor of the
Commonwealth was inadequate and the Commonwealth had failed to ensure
that adequate care was being provided: at [258]–[259].

20.80 However, although the categories of non-delegable duties are not

closed, in Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22;
233 ALR 200, the High Court cautioned against the recognition of new
categories without very careful consideration. Callinan J stated (at [190]):
The unanimous judgment of this Court in Sullivan v Moody [(2001) 207 CLR 562] speaks of the
necessity for coherence in the law. All of this is to suggest that this Court should scrutinise with
great care, and generally reject the imposition of non-delegable duties, unless there are very
special categories warranting an exception, as to which nothing further need be said here. On
any view this case does not fall within a necessary exception.

Kirby J stated (at [36]):

If there is no conceptual unity to the recognised instances of non-delegable duties in tort,
repeated observations in this Court suggest that the presently recognised categories should not
be expanded.

Scope and Breach of Duty

Scope of the duty
20.81 If a duty is characterised as non-delegable, in general terms, the
defendant has a duty to ensure that reasonable care is taken not only on its
own part, but also that others take reasonable care when entrusted with the
discharge of the defendant’s duty of care:

[page 527]

Kondis v State Transport Authority (1984) 154 CLR 672; 55 ALR 225; Lepore
(2003) 212 CLR 511; 195 ALR 412.
Lepore (2003) 212 CLR 511; 195 ALR 412 raised the question as to whether
a plaintiff could sue for breach of a non-delegable duty if the act complained
of was intentional. Of the members of the High Court, only McHugh J
thought that a plaintiff could sue in negligence even if the act was deliberate:
at [161]. Gleeson CJ held that an intentional act is different from a failure to
take care, which is what negligence involves: at [31]. In their joint judgment,
Gummow and Hayne JJ held that to extend non-delegable duties to include
intentional acts was to sever the link with negligence: at [266]. Justice
Callinan agreed with Heydon JA’s dissent in the New South Wales Court of
Appeal decision ((2001) 52 NSWLR 420), rejecting the argument that a non-
delegable duty could be owed for intentional acts: at [340]. Kirby J held that
nondelegable duties should not be applied if vicarious liability could be
utilised: at [290].
The Royal Commission into Institutional Responses to Child Sexual Abuse,
Redress and Civil Litigation Report, examined the issues with the current the
Australian law in respect of intentional torts and non-delegable duties. It was
recognised that the development of the law in this area, along with the
doctrine of vicarious liability (see 20.40), left the victims of abuse without
redress in many cases, or cases settled without going to court because of the
uncertainty in this area. The report recommended:
 State and territory governments should introduce legislation to impose a non-delegable duty on
certain institutions for institutional child sexual abuse despite it being the deliberate criminal act
of a person associated with the institution (recommendation 89).

… state and territory governments should introduce legislation to make institutions liable for
institutional child sexual abuse by persons associated with the institution unless the institution
proves it took reasonable steps to prevent the abuse (recommendation 91).

Breach of the duty

20.82 Recognition of a duty as non-delegable does not impose strict
liability upon the defendant. In Lepore, the respondents had been sexually
assaulted by teachers. It was argued that the appellants were liable as the duty
owed to the students was a non-delegable one. The High Court held that,
although the duty is recognised as being non-delegable, if there is no evidence
of fault on the part of the party on whom the duty is imposed, there is no
liability: at [38], [126] and [291].
This approach affirmed the decision of Rich v Queensland; Samin v
Queensland (2001) Aust Torts Reports ¶81-626, where the Queensland Court
of Appeal held that the interpretation that the duty upon the school imposed
strict liability was incorrect. McPherson JA stated (at 67,391):
[The non-delegable duty] is not to be equated with a warranty, promise or an undertaking to
indemnify or hold them harmless against injury. It goes no further than a duty by the State
requiring it to take reasonable steps to prevent them from being harmed. It does not guarantee
the safety of schoolchildren against sources or events like mad dogs, venomous snakes,
kidnappers, serial killers and rapists, and other dangerous hazards of life, unless it is shown that
they ought in the circumstances to have been foreseen and guarded against by the State; or in
other words,

[page 528]

that reasonable steps might and should have been taken by the State as the school authority to
prevent danger from sources like those.

20.83 The High Court is very wary of imposing a non-delegable duty if the
scope of the duty is one that could not be discharged even by ‘reasonable
adapted preventative measures’: Leichhardt Municipal Council v Montgomery
(2007) 230 CLR 22; 233 ALR 200 at [125] per Kirby J. In Leichhardt
Municipal Council v Montgomery, Gleeson CJ stated (at [23]):
To speak of a local council having a duty to ensure that such an apparently low-level and
singular act of carelessness does not occur is implausible. It is one thing to find fault on the part
of council officers where there has been a failure to exercise reasonable care in supervising the
work of a contractor, or in approving a contractor’s plans and system of work. It is another
thing to attribute to the council a legal duty of care which obliges the council to do the
impossible: to ensure that no employee of the contractor behaves carelessly. The problem is even
more acute if the source of this duty of care is said to be found in statute. One of the things that
is special about this duty is that it is a duty to do the impossible. That is unlikely to have been
intended by the legislature.

Callinan J stated that if the effect of imposing a non-delegable duty is to

impose strict liability, the High Court will go against such a finding: at [188].

Legislation
20.84 The Ipp Report8 recommended that civil liability legislation should
ensure that plaintiffs could not take their action based on a non-delegable
duty in an attempt to avoid the application of the legislation:
recommendation 43. Very few of the jurisdictions have adopted this
recommendation. Civil liability legislation that does address the issue of the
non-delegable duty provides that, if a non-delegable duty has been breached,
the defendant will only be liable to the same extent that they would be liable if
they were vicariously liable: Civil Liability Act 2002 (NSW) s 5Q; Wrongs Act
1958 (Vic) s 61. In Queensland and Tasmania, the legislation provides that it
applies to non-delegable duties: Civil Liability Act 2003 (Qld) Sch 2,
definition of ‘claim’; Civil Liability Act 2002 (Tas) s 3C.

4 Indemnities
20.85 Where a party is held to be vicariously liable for the tortious conduct
of another, liability is imposed upon a party who has committed no wrong.
However, it is possible that a party, who has been held to be liable vicariously,
may be indemnified by the party which committed the tort: Lister v Romford
Ice & Cold Storage Co Ltd [1957] AC 555.

20.86 A right to an indemnity is a right to be compensated for any liability

or loss that is incurred. Under the common law, an employer may claim an
indemnity from a tortious employee if they have been held to be vicariously
liable. The employee is required to compensate the employer with respect to
the damages that the employer has had to pay. This rule derives from the case
of Lister v Romford Ice & Cold Storage Co Ltd [1957] AC 555, where the
plaintiff (Romford Ice) was vicariously liable for personal injuries caused

[page 529]

by its employee (Lister). The insurer of Romford Ice enforced its right of
subrogation and argued that there was an implied term in the contract of
employment that the employee would take reasonable care in the
performance of his or her duties and that any failure to exercise reasonable
care amounted to a breach of contract. Therefore, the contract required the
employee to indemnify the employer for any damages paid due to his or her
negligence. The House of Lords agreed with this argument, relying on policy
considerations to support the conclusion, for example that to grant immunity
to an employee would encourage irresponsibility: at 579.

20.87 The rule in Lister v Romford Ice & Cold Storage Co Ltd still applies,
subject to some exceptions and abrogation by legislation. An example of a
common law exception is Kelly v Alford [1988] 1 Qd R 404, which involved
personal injury to an employee arising out of the use of an unregistered prime
mover and refrigerated van. The court held that a vehicle in constant use on
public roads was required to be registered and could not be used lawfully
without registration. The vehicle was driven by a fellow employee on the
premises of the employer and a senior officer of the employer was the
registered owner. The court held there was an implied term in the contract of
service that the employer would not require the employee to do anything
which was unlawful and that the employer impliedly warranted to the
employee driver that the vehicle was registered and insured. In these
circumstances, the employee driver was entitled to a complete indemnity
from the employer.
In FAI General Insurance Co Ltd v A R Griffiths & Sons Pty Ltd (1997) 71
ALJR 651, the High Court declined the opportunity to modify the common
law position on the basis that it was more appropriately a task for legislatures.
The rule in Lister v Romford Ice has been modified in many jurisdictions:
see 21.25

20.88 See New South Wales v Eade [2006] NSWSC 84, where the state
claimed against a police officer who had been found liable for the torts of false
imprisonment and malicious prosecution. As his employer, the state was
vicariously liable by application of the Law Reform (Vicarious Liability) Act
1983 (NSW). The state claimed the damages against the police officer, as s 5
of the Employees Liability Act 1991 (NSW) states that the Law Reform
(Vicarious Liability) Act does not apply if the conduct that constitutes the tort
is serious and wilful misconduct or is not in the course of the employment. As
the conduct of the police officer was serious and wilful, although in the course
of employment, the state was entitled to cross-claim against its employee.

Further Reading
R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis
Butterworths, Sydney, 2013, Ch 26.
 C Beuermann, ‘Conferred Authority Strict Liability and Institutional
Child Sexual Abuse’ (2015) 37 Syd LR 113.
—, ‘Tort Law in the Employment Relationship: A Response to the
Potential Abuse of an Employer’s Authority’ (2014) 21 TLJ 169.

[page 530]

G E Dal Pont, ‘Agency: Definitional Challenges Through the Law of

Torts’ (2003) 11 TLJ 68.
H Luntz, D Hambly, K Burns, J Dietrich and N Foster, Torts: Cases and
Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2012, Ch 17.
L McCarthy, ‘Vicarious Liability in the Agency Context’ (2004) 4
QUTLJJ 1.
P Vines, ‘New South Wales v Lepore; Samin v Queensland; Rich v
Queensland: Schools’ Responsibility for Teachers’ Sexual Assault: Non-
Delegable Duty and Vicarious Liability’ (2003) 27 MULR 612.
J Wangmann, ‘Liability for Institutional Child Sexual Assault: Where
does Lepore Leave Australia?’ (2004) 28 MULR 169.

1. Citing J Fleming, The Law of Torts, 9th ed, Law Book Co, Sydney, 1998, p 434.
2. ALRC, Report No. 92, October (2001), pp 491–2.
3. QLRC, Report No. R56, December (2001), pp 56–7.
4. Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil
Litigation Report (2015).
5. See P Vines, ‘New South Wales v Lepore; Samin v Queensland; Rich v Queensland: Schools’
Responsibility for Teachers’ Sexual Assault: Non-Delegable Duty and Vicarious Liability’ (2003)
27 MULR 612.
6. See also C Beuermann, ‘Conferred Authority Strict Liability and Institutional Child Sexual Abuse’
(2015) 37 Syd LR 113; J Wangmann, ‘Liability for Institutional Child Sexual Assault: Where does
Lepore Leave Australia?’ (2004) 28 MULR 169.
7. See G E Dal Pont, ‘Agency: Definitional Challenges through the Law of Torts’ (2003) 11 TLJ 68.
8. Commonwealth of Australia, Review of the Law of Negligence — Final Report (the Ipp Report),
October 2002, available at <http://revofneg.treasury.gov.au>.
[page 531]
 Chapter 21

Multiple Tortfeasors

1 Introduction
21.1 The term ‘multiple tortfeasors’ has a long and complex history, both
at common law and under the legislation enacted to modify the common law
rules. The interpretation of the legislation has itself produced considerable
uncertainty and litigation. As Gaudron and Gummow JJ commented in James
Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53; 159 ALR 268 at
[7], the legislation ‘has become notorious for the conceptual and practical
difficulties it engenders’; see also Kirby J’s comments in Baxter v Obacelo Pty
Ltd (2001) 205 CLR 635; 184 ALR 616 at [72].

21.2 The term multiple tortfeasors encompasses three different legal

relationships:
1. joint tortfeasors — defendants whose combined tortious conduct
cause the plaintiff’s harm or damage;
2. several tortfeasors — defendants who are responsible for causing
the plaintiff’s damage but the tortious conduct of each was separate
from, or independent of, that of the other defendant(s); or
3. successive tortfeasors — defendants whose independent acts cause
different damage to the one plaintiff.
This chapter considers joint and several tortfeasors which are referred to as
‘concurrent tortfeasors’,1 and involve an apportionment of liability, that is, an
assessment of each defendant’s contribution to the plaintiff’s damage.
21.3 Concurrent tortfeasors are jointly and severally liable for the whole of
the same damage, known as ‘solidary liability’.
In contrast, as the conduct of successive tortfeasors is independent and
causes different damage to the plaintiff, there is no contribution involved.
Each successive tortfeasor is liable only for the damage they have caused.
Successive tortfeasors are considered in Chapters 11 and 12.

[page 532]

The relationship between concurrent and successive tortfeasors may be

illustrated as follows:

21.4 At common law, a critical distinction between joint tortfeasors and

several tortfeasors was the way in which the plaintiff could respectively sue
them:
The plaintiff could sue joint tortfeasors either separately or in the same
action, but only one judgment for one sum of damages could be given
 in favour of the plaintiff. This was the basis of the rule in Brinsmead v
Harrison (1872) LR 7 CP 547, which provided that a judgment against
one or more of the joint tortfeasors released the other tortfeasors from
further liability. This rule applied even if the judgment was not
satisfied. It was also the basis of the rule that the release of one joint
tortfeasor released all of the other tortfeasors, although a ‘covenant not
to sue’ did not have this effect.
With several tortfeasors, the plaintiff had a separate cause of action
available against each tortfeasor. At common law, this meant that the
plaintiff had to sue each tortfeasor separately and they could not be
joined as defendants in the one cause of action. The plaintiff could,
however, sue each separately in turn until the damage was recovered in
full. Being separate causes of action, the rule in Brinsmead v Harrison
(1872) LR 7 CP 547 did not apply to several tortfeasors, nor did the
release of one tortfeasor release the others.

2 Joint Tortfeasors
21.5 As discussed by Gleeson CJ and Callinan J in Baxter v Obacelo Pty Ltd
(2001) 205 CLR 635; 184 ALR 616, there are three situations in which the
relationship of joint tortfeasors might arise:
1. Vicarious liability: The most common situation giving rise to a
relationship of joint tortfeasors is where one person is vicariously
liable for another’s tortious conduct.

[page 533]

For example, employers are vicariously liable for the torts of their
 employees: see Chapter 20. See also Baxter v Obacelo Pty Ltd
discussed at 21.13.
2. Engaging in concerted action: Thompson v Australian Capital
Television Pty Ltd (1996) 186 CLR 574; 141 ALR 1 provides an
example of persons who engaged in concerted action. The two
defendants were television stations: the Sydney-based Channel 9
and the Australian Capital Territory-based Channel 7. Channel 9
produced a program, an episode of ‘The Today Show’, which
allegedly defamed the plaintiff. Channel 7, pursuant to a licence
agreement, almost instantaneously broadcast the program in the
Australian Capital Territory. The High Court held that the
transmission of the television program in question was the result of
concerted action on the part of Channel 9 and Channel 7 and made
them joint tortfeasors. See also The Koursk [1924] P 140 at 159–60.
3. Breaching a common duty: An extreme example of breaching a
common duty is provided by the case of Brooke v Bool [1928] 2 KB
578, where a landlord and a lodger together were looking for a gas
leak, each using a naked flame. The lodger’s flame ignited an
explosion but the landlord was also held liable for the negligent
conduct of the lodger because they were both engaged in the
common purpose of seeking the gas leak.

The Legislation
21.6 As noted at 21.4, the rule in Brinsmead v Harrison (1872) LR 7 CP
547 meant that once the plaintiff had secured a judgment against one or more
of the joint tortfeasors, no further proceedings against the other tortfeasors
were possible. The rule has now been abolished by statute; for example, s 6(a)
of the Law Reform Act 1995 (Qld) provides:
Proceedings against, and contribution between, joint and several tortfeasors

Where damage is suffered by any person as a result of a tort (whether a crime or not) —
 (a) judgment recovered against any tortfeasor liable in respect of that damage shall not be a bar
to an action against any other person who would, if sued, have been liable as a joint
tortfeasor in respect of the same damage; …

See Civil Law (Wrongs) Act 2002 (ACT) s 20(1); Law Reform
(Miscellaneous Provisions) Act 1946 (NSW) s 5(1)(a); Law Reform
(Miscellaneous Provisions) Act 1956 (NT) s 12(2); Law Reform (Contributory
Negligence and Apportionment of Liability) Act 2001 (SA) s 12(1); Wrongs
Act 1954 (Tas) s 3(1)(a); Wrongs Act 1958 (Vic) s 24AA; Law Reform
(Contributory Negligence and Tortfeasors’ Contribution) Act 1947 (WA) s 7.

21.7 Under the legislation, separate judgments may be given against

tortfeasors for damage caused by a joint tort, whether in the same or different
proceedings, and the sums awarded against the joint tortfeasors need not be
the same: Baxter v Obacelo Pty Ltd (2001) 205 CLR 635; 184 ALR 616. This
means, for example, that exemplary damages may be awarded against only
one or some of the defendants, and in differing amounts: XL Petroleum
(NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd (1985) 155 CLR 448; 57 ALR 639;
De Reus v Gray (2003) 9 VR 432.

[page 534]

21.8 Since the legislation provides that the cause of action against joint
tortfeasors is no longer one and indivisible, there is now no conceptual basis
for the continuation of the rule that the release of one joint tortfeasor releases
the others: Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR
574; 141 ALR 1 per Brennan CJ, Dawson and Toohey JJ.

3 Several Tortfeasors
21.9 At common law, several concurrent tortfeasors could not be sued
together in the one action. Instead, a plaintiff had to sue each tortfeasor
separately until the damage was recovered in full. The practice rules of the
various Australian courts now permit the joinder of parties who are severally
responsible for the same damage, so that several tortfeasors, like joint
tortfeasors, may be sued in the one action or separately: Barker v Permanent
Seamless Floors Pty Ltd [1983] 2 Qd R 561.

21.10 The legislation abolishing the rule in Brinsmead v Harrison (1872)

LR 7 CP 547 does not apply to several tortfeasors, as the common law rule
only applied to joint tortfeasors. However, the other provisions of the
legislation abolishing the rule in Brinsmead v Harrison do apply to both joint
and several tortfeasors.
It is possible that circumstances may arise where the distinction between
joint tortfeasors being liable for the same torts and several tortfeasors being
liable for different torts causing the same damage is significant.

4 Concurrent Tortfeasors
21.11 The removal of the prohibition against bringing more than one
action against joint tortfeasors raised the possibility of a plaintiff bringing a
series of actions against the individual tortfeasors in a manner which was
potentially both economically inefficient and unjust. Similar concerns existed
in relation to the possibility of bringing serial actions against several
tortfeasors.
This concern about serial litigation has been reduced by the legislative
provisions.

21.12 If the plaintiff does take an action against another concurrent

tortfeasor, they are not entitled to costs of the action unless the court
considers there were reasonable grounds for taking the actions separately.
 See Civil Law (Wrongs) Act 2002 (ACT) s 20(2)(b); Law Reform
(Miscellaneous Provisions) Act 1965 (NSW) s 12; Law Reform (Miscellaneous
Provisions) Act 1946 (NSW) s 5(1)(b); Law Reform (Miscellaneous
Provisions) Act 1956 (NT) s 12(3)(b); Law Reform Act 1995 (Qld) s 6(b); Law
Reform (Contributory Negligence and Apportionment of Liability) Act 2001
(SA) s 12(1), (2)(b), (3); Wrongs Act 1954 (Tas) s 3(1)(b); Wrongs Act 1958
(Vic) s 24AB; Law Reform (Contributory Negligence and Tortfeasors’
Contribution) Act 1947 (WA) s 7(1)(b).
Further, the legislation provides that the amount of damages awarded in
the first action against one concurrent tortfeasor will set the upper limit for
recovery in total against all the concurrent tortfeasors. See Civil Law
(Wrongs) Act 2002 (ACT) s 20(2)(a); Law Reform

[page 535]

(Miscellaneous Provisions) Act 1946 (NSW) s 5(1)(b); Law Reform

(Contributory Negligence and Apportionment) Act 2001 (SA) s 5(2) and (3);
Tortfeasors and Contributory Negligence Act 1954 (Tas) s 3(1). The
exception is Victoria where there is no cap on the aggregate of damages that
may be recovered.

21.13 In Baxter v Obacelo Pty Ltd (2001) 205 CLR 635; 184 ALR 616, the
plaintiff, Obacelo, had brought a single action against both Baxter, the
solicitor who allegedly was negligent in the conduct of a conveyancing
transaction, and his employer. The plaintiff was seeking compensation in
excess of $430,000, but signed a deed of release, embodied in a consent
judgment, with the employer for the sum of $250,000.
In the continuance of the original action against Baxter, Obacelo was
seeking recovery of the balance of the $430,000. Baxter argued that the
operation of legislation, in this case s 5(1)(b) of the Law Reform
(Miscellaneous Provisions) Act 1946 (NSW), should defeat the plaintiff’s
action. The main argument relied upon by Baxter was that the $250,000
agreed to in the deed of release represented full satisfaction of the plaintiff’s
rights against Baxter or anyone else. This argument was rejected by the High
Court:
In the present case, the deed of release, the terms of settlement, and the conduct of the parties to
the settlement, clearly showed that it was contemplated that the respondents would pursue their
claim against the appellant, and that they were not accepting the sum of $250,000 in full
satisfaction of the loss or damage they said they incurred. There is no reason why they should be
prevented from continuing with their claim against the appellant: at [49] per Gleeson CJ and
Callinan J.

The court did concede that, in some cases, it would be inconsistent with
established common law and equitable principles to allow further recovery if:
… either expressly or by implication, a settlement agreement manifested a common intention of
the parties to the agreement that the settlement sum was to be paid and received in full
satisfaction of the rights of the plaintiff, against the defendant or anyone else: at [48].

21.14 The decision in Baxter v Obacelo Pty Ltd only applies where all the
tortfeasors have been joined as parties to the original action. If further
separate actions are brought, then the legislative provisions will restrict
recovery to the damages awarded in the first judgment given and ‘the plaintiff
will not be entitled to costs unless the court is of opinion there were
reasonable grounds for bringing the action’. The High Court did not indicate
what would constitute ‘reasonable grounds’; however, such circumstances
might be where the plaintiff was unaware of the existence or identity of the
additional defendants.2

Contribution by Concurrent Tortfeasors

21.15 At common law, one joint tortfeasor, who paid for all of the damage,
could not obtain a contribution from the other concurrent tortfeasors (the
rule in Merryweather v Nixan (1799) 8 Term Rep 186; 101 ER 1337), except
perhaps in the case of principal and agent: Adamson v Jarvis (1827) 4 Bing 66;
130 ER 693.

[page 536]

21.16 The rule in Merryweather v Nixan has been abolished under the
legislation. In Queensland, the Law Reform Act 1995 s 6(c) provides:
(c) any tortfeasor liable in respect of that damage may recover contribution from any other
tortfeasor who is, or would if sued have been, liable in respect of the same damage, whether
as a joint tortfeasor or otherwise so, however, that no person shall be entitled to recover
contribution under this section from any person entitled to be indemnified by the person
in respect of the liability in respect of which contribution is sought.

See also Civil Law (Wrongs) Act 2002 (ACT) s 21(1); Law Reform
(Miscellaneous Provisions) Act 1946 (NSW) s 5(1)(c); Law Reform
(Miscellaneous Provisions) Act (NT) s 12(4); Law Reform (Contributory
Negligence and Apportionment) Act 2001 (SA) s 6(1); Wrongs Act 1954
(Tas) s 3(1)(c); Wrongs Act 1958 (Vic) s 23B(1); Law Reform (Contributory
Negligence and Tortfeasors’ Contribution) Act 1947 (WA) s 7(1)(c).

21.17 The High Court held in AMACA Pty Ltd v New South Wales (2003)
199 ALR 596; 77 ALJR 1509 that a claimant for contribution under the
legislation must satisfy that:
The claim for contribution is ‘in respect of the same damage’: The
meaning of this term was considered by the High Court in Alexander v
Perpetual Trustees WA Ltd (2003) 216 CLR 109; (2004) 204 ALR 417.
The majority of the court (Gleeson CJ, Gummow and Hayne JJ) held
that the term should be given a narrow meaning so that contribution
may be claimed only where the claimant could establish that the
potential contributor is liable for the same damage to the same
plaintiff. As the majority stated: ‘The relevant enquiry is not confined
to whether the damage for which each is liable can be said to be the
same; both claimant and potential contributor must be liable to the
injured plaintiff’: at [32].
In regard to physical injuries, the particular injury for which the
claimant is seeking a contribution must be the same and not just a part
of a physical disability taken as a whole: Dillingham Constructions Pty
Ltd v Steel Mains Pty Ltd (1975) 132 CLR 323; 6 ALR 171; Mahony v J
Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522; 59 ALR 722.
The claimant must have been held liable: The tortfeasor claiming
contribution from other concurrent tortfeasors must be able to
establish that the claimant itself has been held liable to the original
plaintiff: Bitumen and Oil Refineries (Aust) Ltd v Commissioner for
Government Transport (1955) 92 CLR 200. Alternatively, the claimant
may be able to prove liability to the original plaintiff through accord
and satisfaction by showing payment under a reasonable settlement:
Bitumen and Oil Refineries (Aust) Ltd v Commissioner for Government
Transport; Stott v West Yorkshire Road Car Co Ltd [1971] 2 QB 651.
The tortfeasor is, or would, if sued, have been held liable: This
requirement covers two situations:
– those who have come under an obligation to pay money in respect
of the same damage; and
– those who, not having been sued by the injured party, would, had
they been sued, have been found to have caused, or contributed
to, the same damage by

[page 537]

a tortious act: Brambles Constructions Pty Ltd v Helmers (1966)

114 CLR 213 at 218–19 per Barwick J, cited with approval by
Gaudron and Gummow JJ in James Hardie & Co Pty Ltd v
Seltsam Pty Ltd (1998) 196 CLR 53; 159 ALR 268.
21.18 In James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53;
159 ALR 268, the plaintiff was seeking contribution from a tortfeasor who
had had a consent judgment entered in its favour in an action originally
brought against three tortfeasors. In the same action, judgment was entered
against the two other tortfeasors of whom the present claimant was one. The
High Court held that the time for challenging entry of judgment in favour of
the third tortfeasor was prior to the consent judgment being entered. There is
no third category ‘which identifies a person from whom contribution may be
recovered by reference to the circumstance that this person has been sued and
been held not liable’: at [35].

21.19 There may also be circumstances where a tortfeasor may not be

liable for contribution because legislation is in place which denies a cause of
action against that tortfeasor. In Austral Pacific Group Ltd (in liq) v
Airservices Australia (2000) 203 CLR 136; 173 ALR 619, the Commonwealth
employer did not come within the operation of the contribution legislation
because the injured employee had not made an election as required by the
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 45. In these
circumstances, the employer was not a tortfeasor who would, ‘if sued’, have
been found liable and could not be joined to the action by the third party
against whom the employee had brought the action.

21.20 The term ‘if sued’ has no temporal connotation and should be
construed to mean ‘if sued at any time’: Brambles Constructions Pty Ltd v
Helmers (1966) 114 CLR 213; James Hardie & Co Pty Ltd v Seltsam Pty Ltd
(1998) 196 CLR 53; 159 ALR 268.

21.21 If a decision has been made, it is res judicata (the matter cannot be
raised again in a court). However, note that in Victoria, a finding of a
tortfeasor’s non-liability will only defeat a claim by another tortfeasor if that
finding of non-liability was determined after a trial on the merits: Wrongs
Act 1958 (Vic) s 23B(1).
Assessment of Contribution
21.22 The apportionment legislation provides for assessment of the
amount of contribution. Section 7 of the Law Reform Act 1995 (Qld)
provides:
In any proceedings for contribution under this division the amount of the contribution
recoverable from any person shall be such as may be found by the court to be just and equitable
having regard to the extent of that person’s responsibility for the damage; and the court shall
have power to exempt any person from liability to make contribution, or to direct that the
contribution to be recovered from any person shall amount to a complete indemnity.

See also Civil Law (Wrongs) Act 2002 (ACT) s 21(2) and (3); Law Reform
(Miscellaneous Provisions) Act 1946 (NSW) s 5(2); Law Reform
(Miscellaneous Provisions) Act (NT) s 13; Law Reform (Contributory
Negligence and Apportionment) Act 2001 (SA) s 6(5) and (7); Tortfeasors
and Contributory Negligence Act 1954 (Tas) s 3(2); Wrongs Act 1958 (Vic) s
24(2); Law Reform (Contributory Negligence and Tortfeasors’ Contribution)
Act 1947 (WA) s 7(2).

[page 538]

21.23 In AMACA Pty Ltd v New South Wales (2003) 199 ALR 596; 77
ALJR 1509 at [15], the High Court unanimously held that there are three
possible outcomes in contributions proceedings:
(i) recovery of an amount such as may be found by the court to be just and equitable having
regard to the extent of the contributing party’s responsibility for the damage;
(ii) an order exempting any person from liability to make contribution; and
(iii) a direction that the contribution to be recovered should amount to a complete indemnity.

In that decision, the court also posed the question of whether it would ever
be proper to totally exempt a negligent party from liability to contribute
except in circumstances ‘where the party to be exempted was not at fault but
found liable for some form of strict liability’: at [20].
21.24 In considering what is just and equitable, the courts will have regard
to the conduct of each party and, in a negligence action, the variation by each
from the standard expected of the reasonable person: Grima v RFI (Aust) Pty
Ltd [2015] NSWSC 332; Dare v Dobson [1960] SR (NSW) 474. Failure to raise
a defence based upon the expiry of the limitation period will be relevant:
Cridge v Commonwealth (1961) 10 FLR 275. Also relevant is the limitation by
law of liability (for example, workers compensation or the civil liability
legislation) of the tortfeasor to the original plaintiff to a particular sum:
Unsworth v Commissioner for Railways (1958) 101 CLR 73; Leonard v Smith
(1992) 27 NSWLR 5.

Indemnity and the Rule in Lister v Romford Ice

21.25 At common law, an employer held vicariously liable for the tort of
an employee may be entitled to a complete indemnity from the employee:
Lister v Romford Ice & Cold Storage Co Ltd [1957] AC 555. In Lister, the
employer company had employed the defendant employee as a lorry driver.
His father was employed as his mate. In the course of their employment, the
defendant driver negligently backed the truck into his father, causing
personal injuries. Upon being sued by the father, the employer was held liable
to the father and paid damages which they obtained from their indemnity
insurers. The insurers exercised their right of subrogation to obtain a full
indemnity from the son.
A majority of the House of Lords found that it was an implied term of the
contract of employment that the employee would perform his duties with
proper care. Breach of that term gave a right to recover the losses flowing
from that breach of contract. The decision caused great consternation
because, if employees again became the ones who had to bear the costs of
workplace accidents, rather than their employers or their employers’
insurance carriers, there would then be the potential for massive industrial
unrest.
21.26 The reaction to the judgment was swift. Under threat of legislative
action in England, the insurers agreed not to exercise rights of subrogation
against employees in industrial accident cases. In New Zealand, legislation
was introduced but not proceeded with and no reported case has occurred
since. The indemnity has been abolished by the Employees Liability Act 1991
(NSW) s 3; Law Reform (Miscellaneous Provisions) Act 1956 (NT) s 22A; and
the Civil Liability Act 1936 (SA) s 59. In addition, s 66 of the Insurance

[page 539]

Contracts Act 1984 (Cth) abolishes the right of subrogation in insurers in the
case of actions by employers against negligent employees.

21.27 However, in those states where the common law position remains
unchanged by legislation, the High Court in FAI General Insurance Co Ltd v
A R Griffiths & Sons Pty Ltd (1997) 71 ALJR 651 at 651 indicated that it is
preferable that a ‘legislative rather than a judicial solution be found’ to any
difficulties created by the decision in Lister v Romford Ice & Cold Storage Co
Ltd [1957] AC 555. In the 2001 Queensland Law Reform Commission report,
Vicarious Liability,3 recommended that legislation be introduced to abrogate
the rule in Lister except where, similar to other states’ legislation, the
employee’s conduct amounted to serious and wilful misconduct.

5 Proportionate Liability
21.28 The above discussion in regard to concurrent liability for joint and
several tortfeasors applies equally to claims for personal injury, property
damage and pure economic loss. In regard to claims for property damage and
pure economic loss, there were suggestions made during the mid- to late-
1990s by several Australian state and New Zealand law reform bodies that
solidary liability should be replaced by proportionate liability.

21.29 The principle of solidary liability means that concurrent tortfeasors

are each jointly and severally liable to compensate the plaintiff for the whole
of the harm suffered by the plaintiff, regardless of their respective degree of
responsibility for that harm. The apportionment of the damages between the
concurrent tortfeasors is a matter to be determined under the relevant
legislation and is, generally, of no concern to the plaintiff.

21.30 Under a proportionate liability system, however, each tortfeasor is

liable only for the share of the harm for which they were responsible.4 In
effect, proportionate liability means that it is the plaintiff who must bear the
loss, rather than the other defendants, when there is an unidentified or
insolvent concurrent tortfeasor. For this reason, suggestions to replace
solidary liability with proportionate liability have been restricted to property
and pure economic loss claims and have excluded compensation claims
relating to personal injuries.

21.31 The replacement of solidary liability with proportionate liability is

especially supported by professional groups, such as engineers, surveyors,
accountants and solicitors, who are often targeted by plaintiffs because they
carry insurance and are generally regarded as having ‘deep pockets’. To some
extent, these concerns of professional groups have been ameliorated, in some
jurisdictions, by the passing of legislation which allows occupational
associations, including professional and trade groups, to obtain professional
indemnity insurance limiting their exposure to liability within specified
insurable limits. Obtaining

[page 540]
the protection of the legislation also ensures that there are sufficient funds
available for professional liability claims if, and when, they occur.

21.32 While the Ipp Report recommended the retention of solidary

liability for personal injuries awards (see [12.2] of the Report),5 some of the
civil liability legislation has included provisions relating to proportionate
liability for property damage and pure economic loss. Some jurisdictions
included the provisions in existing legislation that deal with apportionment:
see Civil Law (Wrongs) Act 2002 (ACT) Ch 7A; Civil Liability Act 2002
(NSW) Pt 4; Proportionate Liability Act 2005 (NT); Civil Liability Act 2003
(Qld) Ch 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.
In Yates v Mobile Marine Repairs Pty Ltd [2007] NSWSC 1463 at [93]–[94],
the proportionate liability scheme, as introduced by Pt 4 of the New South
Wales Civil Liability Act 2002, was explained:
The object of Pt IV CLA is remedial and it dramatically changes the previous law. Formerly, a
plaintiff could choose to sue only one of several wrongdoers who caused the same loss and the
Court could enter judgment for the whole of that loss against the defendant. Even if the
defendant cross claimed in the proceedings for indemnity or contribution against the other
wrongdoers, the plaintiff could enforce a judgment against the defendant alone for the whole of
the loss, leaving the defendant to recover from the cross defendants, if it could. Sometimes the
defendant obtained judgment against a cross defendant but could not recover the judgment
because of the cross defendant’s insolvency.

Part IV is designed to alleviate this perceived injustice. It is intended to visit on each concurrent
wrongdoer only that amount of liability which the Court considers “just”, having regard to the
comparative responsibilities of all wrongdoers for the plaintiff’s loss. How the Court is to assess
what is “just” is not explained. The Court must exercise a large discretionary judgment founded
upon the facts proved in each particular case. The principles upon which the Court will exercise
this discretionary judgment will come to be developed on a case-by-case basis. However, it
seems clear enough that the policy of Pt IV is that a wrongdoer who is, in a real and pragmatic
sense, more to blame for the loss than another wrongdoer should bear more of the liability. This
calls for the exercise of the same kind of judgment as the Court exercises in apportioning
responsibility as between a defendant sued in tort for negligence and a plaintiff who, by his or
her own negligence, has been partly responsible for the injury.6
21.33 For the proportionate liability provisions of the relevant legislation
to apply:
the claim against the defendant must be an ‘apportionable claim’;
the defendant must be a concurrent wrongdoer; and
the Act does not exclude the defendant’s liability from being
apportioned.

[page 541]

Apportionable Claim
21.34 Every jurisdiction, except for South Australia, defines ‘apportionable
claim’ as a claim for damages for property or economic loss. The loss must
arise from a breach or a failure to take reasonable care (or in Queensland, a
breach of duty of care), whether in tort, contract or under statute.
See Civil Law (Wrongs) Act 2002 (ACT) s 107B(2); Civil Liability Act 2002
(NSW) s 34(1); Proportionate Liability Act 2005 (NT) ss 3, 4(2); Civil Liability
Act 2003 (Qld) s 28(1)(a); Civil Liability Act 2002 (Tas) s 43A(1); Wrongs Act
1958 (Vic) s 24AF(1); Civil Liability Act 2002 (WA) s 5AI(1).
In South Australia the legislation defines ‘apportionable liability’ as
property and economic loss, not including economic loss consequent on
personal injury, where two or more wrongdoers, who are not joint
tortfeasors, commit a negligent and innocent wrongdoing: Law Reform
(Contributory Negligence and Apportionment of Liability) Act 2001 (SA) s
3(2).

Concurrent Wrongdoer
21.35 Section 34(2) of the Civil Liability Act 2002 (NSW) defines
‘concurrent wrongdoer’ as:
 … a person who is one of two or more persons whose acts or omissions (or act or omission)
caused, independently of each other or jointly, the damage or loss that is the subject of the claim.

See also Civil Law (Wrongs) Act 2002 (ACT) s 107D(1); Proportionate
Liability Act 2005 (NT) s 6(1); Civil Liability Act 2002 (Tas) s 43A(2); Wrongs
Act 1958 (Vic) s 24AH(1); Civil Liability Act 2002 (WA) s 5AI. The
Queensland and South Australian legislation does not include joint
wrongdoers: Civil Liability Act 2003 (Qld) s 30(1); Law Reform (Contributory
Negligence and Apportionment of Liability) Act 2001 (SA) s 3(2)(b).

21.36 In Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd
(2013) 247 CLR 613; 296 ALR 3, the High Court had to consider the issue of
who was a concurrent wrongdoer for the purposes of the New South Wales
legislation, Civil Liability Act 2002 Pt 4. The focus of the court was on the
meaning of ‘damage or loss that is the subject of the claim’ contained in the
definition of ‘concurrent wrongdoer’ in s 34(2). In that case, a person forged
the signature of their business partner to secure loans from the respondent of
just over $1 million. The loans were secured by a mortgage which failed to
include a covenant for the repayment of the sum advanced; instead referring
to the money advanced to the business partner whose signature had been
forged. As it was fraud, the loan agreements were void and the business
partner was not liable and therefore the mortgage secured nothing. As a
result, the respondent could not recover any of the money. The appellant
argued that its negligence in the preparation of the mortgage was not a cause
of the respondent’s loss; it was the fraud, as without the fraud, the loans
would not have been made and the mortgage would not have been registered.
A majority of the court, French CJ, Hayne and Kiefel JJ, held that the loss
suffered by the respondent for the purpose of s 34(2) was that it was unable to
recover the money it had advanced: at [28]. Therefore the appellant was a
concurrent wrongdoer under the Act.

[page 542]
21.37 To be a concurrent wrongdoer, the defendant must be legally liable
to the plaintiff. In Shrimp v Landmark Operations Ltd (2007) 163 FCR 510,
the definition of ‘concurrent wrongdoer’ as in s 87CB(3) of the Trade
Practices Act 1974 (Cth) (repealed) was considered, which is consistent with
the definition above. Besanko J held (at [62]):
The definition of concurrent wrongdoer seems to be the critical subsection and, in my opinion,
the word “caused” in s 87CB(3) should be read as meaning such as to give rise to a liability in the
concurrent wrongdoer to the plaintiff or applicant.

See also St George Bank Ltd v Quinerts Pty Ltd (2009) 25 VR 666 at [64],
where Shrimp v Landmark Operations Ltd was applied to the proportionate
liability provisions in the Wrongs Act 1958 (Vic).

21.38 Due to the definitions in the Queensland and South Australian

legislation, a wrongdoer and the party who is vicariously liable for the tort of
that wrongdoer, are not within the ambit of the proportionate liability
provisions as their liability as wrongdoers is joint. As for the other
jurisdictions, where joint tortfeasors are included, McDonald has reasoned
that:
It may be that this definition [of “concurrent wrongdoer”] implies either a separate act or
omission by each person or an actual joint performance of one act or a joint omission to fulfil a
duty (eg, joint occupiers negligently light or fail to extinguish a fire) and that it was not intended
to apply where there is a “deemed” joint liability.7

Exclusions
21.39 The legislation of each jurisdiction varies as to what specific types of
claims are excluded from the application of the proportionate liability
provisions. For example, in Queensland, claims by consumers are not
apportionable claims (Civil Liability Act 2003 (Qld) s 28(3)(b)) and in New
South Wales claims for damages for breach of statutory warranty are
excluded: Civil Liability Act 2002 (NSW) s 34(3A).

21.40 All of the jurisdictions address the liability of a defendant who is

fraudulent or intentionally caused the plaintiff’s loss. For example, in
Queensland a fraudulent or intentional wrongdoer ‘is severally liable for the
damages awarded against any other concurrent wrongdoer to the
apportionable claim’: Civil Liability Act 2003 (Qld) ss 32D and 32E. In
Victoria, no reference is made to a wrongdoer who intentionally caused the
loss, but if they were fraudulent, s 24AM of the Wrongs Act 1958 provides
that they are ‘jointly and severally liable for the damages awarded against any
other defendant in the proceeding’. The other jurisdictions, except for South
Australia which refers to negligent or innocent actions of a wrongdoer in the
definition of ‘apportionable liability’, identify a fraudulent or intentional
wrongdoer as an ‘excluded concurrent wrongdoer’ and the law relevant
outside the proportionate liability provisions applies. See Civil Law (Wrongs)
Act 2002 (ACT) s 107E; Civil Liability Act 2002 (NSW) s 34A; Proportionate
Liability Act 2005 (NT) s 7; Civil Liability Act 2002 (Tas) s 43A(5); Civil
Liability Act 2002 (WA) s 5AJA.

[page 543]

Apportioning Liability
21.41 The proportionate liability legislation requires that the court assess
the concurrent wrongdoer’s proportion of the loss. For example, s 31(1) of
the Civil Liability Act 2003 (Qld) states:
In any proceeding involving an apportionable claim —
(a) the liability of a defendant who is a concurrent wrongdoer in relation to the claim is
limited to an amount reflecting that proportion of the loss or damage claimed that the
court considers just and equitable having regard to the extent of the defendant’s
responsibility for the loss or damage; …

See also Civil Law (Wrongs) Act 2002 (ACT) s 107F(1)(a) (‘just’); Civil
Liability Act 2002 (NSW) s 35(1)(a) (‘just’); Proportionate Liability Act 2005
(NT) s 13(1)(a) (‘just’); Law Reform (Contributory Negligence and
Apportionment of Liability) Act 2001 (SA) s 8(2) (‘fair and equitable’); Civil
Liability Act 2002 (Tas) s 43B(1)(a) (‘just’); Wrongs Act 1958 (Vic) s 24AI(1)
(a) (‘just’); Civil Liability Act 2002 (WA) s 5AK(1)(a) (‘just’).

21.42 In Reinhold v New South Wales Lotteries Corporation (No 2) (2008)

82 NSWLR 762, the contribution between two defendants had to be
determined. The plaintiff had requested a ticket at the newsagent, but it only
partially printed so another terminal at the newsagent was used to print a
second ticket. The plaintiff paid for the second ticket and the employee of the
newsagent sought advice from the Lottery Corporation as to the partially
printed ticket. Due to a misunderstanding, the second ticket was cancelled
instead of the partially printed ticket. The plaintiff’s cancelled ticket won the
first division prize of $2 million. He was awarded $2 million in damages for
the breach of contract and negligence by the Lottery Corporation and the
newsagent. In assessing the contribution of each defendant, Barrett J stated
(at [60]):
Because the legislature has seen fit to adopt in s 35(1)(a) of the Civil Liability Act [(NSW)] a
form of words concerning apportionment which is almost indistinguishable from that which has
long been used in statutes concerning contributory negligence and contribution among
tortfeasors, I consider it appropriate to follow approaches to the meaning of those words
developed and sanctioned by appellate courts. I therefore approach the matter before me on the
basis that my principal task is to make findings about
(a) the degree of departure from the standard of care of the reasonable man, as regards the
causative conduct of [the Lotteries Corporation] and the Newsagents; and
(b) the relative importance of the acts of [the Lotteries Corporation] and the Newsagents in
causing the economic loss suffered by Mr Reinhold,
making a comparative examination of the whole conduct of each of [the Lotteries Corporation]
and the Newsagents in relation to the circumstances in which the loss was sustained.

In considering the evidence, Barrett J found that the Lotteries Corporation

was in charge of the computer system and it was reasonable for an employee
of a newsagency to contact them and follow their instructions for cancelling
the ticket. The employee of the Lotteries Corporation had not followed
standard procedure, but the newsagent had also been negligent in failing to
take steps to notify its employees of the procedures for partial tickets and
their cancellation: at [72]. It was thought that the Lotteries Corporation had a

[page 544]

‘significantly greater degree of culpability’ and was a ‘very significantly

stronger causative force’ and had departed from the expected standard of care
to a greater degree than the newsagent: at [80]. Apportionment was assessed
as 90 per cent to the Lotteries Corporation and 10 per cent to the newsagent.
See also George v Webb [2011] NSWSC 1608; Chandra v Perpetual Trustees
Victoria Ltd (2007) 13 BPR 24,675; Aust Torts Reports ¶81-896; [2007]
NSWSC 694.

Further Reading
R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis
Butterworths, Sydney, 2013, Ch 29.
H Luntz, D Hambly, K Burns, J Dietrich and N Foster, Torts: Cases and
Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2012, Ch 18.
B McDonald, ‘Proportionate Liability in Australia: The Devil in the
Detail’ (2005) 26 Aust Bar Rev 29.
J Watson, ‘From Contribution to Apportioned Contribution to
Proportionate Contribution’ (2004) 78 ALJ 126.

1. Consistent with the terminology used by the High Court in Baxter v Obacelo Pty Ltd (2001) 205
CLR 635; 184 ALR 616 at [24]–[25].
2. A Broadfoot, ‘Multiple Defendant Litigation and the Rule Against Double Recovery’ (2002) 10 TLJ
255.
3. QLRC, Report R56 (2001), p 114.
4. See, for example, the situation in the Northern Territory, South Australia and Victoria where
proportionate liability has been introduced in legislation covering property damage or pure
economic loss caused by building defects: Building Act 1993 (NT); Development Act 1993 (SA);
Building Act 1993 (Vic).
5. Commonwealth of Australia, Review of the Law of Negligence — Final Report (the Ipp Report),
October 2002, available at
<http://www.treasury.gov.au/ConsultationsandReviews/Reviews/2002/Review-of-the-Law-of-
Negligence>.
6. See also B McDonald, ‘Proportionate Liability in Australia: The Devil in the Detail’ (2005) 26 Aust
Bar Rev 29 at 49.
7. B McDonald, ‘Proportionate Liability in Australia: The Devil in the Detail’ (2005) 26 Aust Bar Rev
29 at 46.
[page 545]
 Chapter 22

Defamation

1 Introduction
22.1 The law of defamation exists to protect personal reputation in the
eyes of others. As stated in R v Burdett (1882) 106 ER 873 at 874:
One of the most refined conclusions at which a refined state of society can arrive, is, that a man
should have a solid property in his reputation. It is one of the greatest privileges that belong to
the nature of man …

22.2 Historically, defamation was both a crime and a tort. Even before the
Conquest, Anglo-Saxon courts treated personal insult as a serious offence
within a local community. In the 10th and 11th centuries, penalties ranged
from fines to ritual public confessions, where the offender was required to
declare himself or herself a liar while holding the nose, to cutting out the
offender’s tongue. The church courts also regarded false accusations of a
person’s reputation as a crime and a sin, leading to various forms of
punishment, including excommunication. Politically motivated statutes from
the 13th century, the scandalum magnatum, sought to punish offenders for
slander of magnates. This legislation was re-enacted by successive monarchs
up to the 17th century.

22.3 From this mixed background, the common law courts extracted civil
remedies for libel for publications in some tangible form, such as writing.
Slander became a recognised action on the case for publications which were
less tangible, for example the spoken word. As Plucknett points out:
There are few chapters in our legal history which illustrate so many different aspects of historical
 development as does the history of defamation. Germanic elements, Roman elements, the rise
and fall of courts, constitutional conflicts, mechanised printing, and later still mechanised
distribution of printed matter, have all played their part in producing the body of law which
historical accident has divided in to the two categories of libel and slander.1

22.4 Closely linked with defamation is the tort of injurious falsehood. The
action of injurious falsehood is designed to protect traders against false and
malicious statements concerning their business, property or goods that inflict
economic loss: Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 694.
See 24.86ff.

[page 546]

2 History of Defamation Law in Australia

22.5 Prior to 1 January 2006, there was no uniform defamation law in
Australia despite many attempts to achieve it over the previous 25 years. The
law of defamation had been codified in Queensland (Defamation Act 1889)
and Tasmania (Defamation Act 1957), but the remaining jurisdictions were
predominantly common law supplemented by statute: see, for example,
Defamation Act 1974 (NSW).

22.6 It is often the case that defamatory matter is published nationally or at

least across different states and/or territories. The disparity between the laws
operating in the different Australian jurisdictions promoted confusion,
uncertainty and forum shopping, as a more favourable result could be
achieved in one jurisdiction with the availability of a defence that was not
available in another jurisdiction. The use of the internet added further
complications to the law of defamation, as the internet transcends all national
and international boundaries and provides many opportunities for
defamation. This means that a single publication may extend across Australia
and foreign jurisdictions: Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575;
194 ALR 433.

22.7 In 1990, the Attorneys-General of New South Wales, Queensland and

Victoria initiated a project resulting in the drafting of similar bills that were
introduced to the respective parliaments. However, the bills were never
enacted. The Australian Capital Territory Community Law Reform
Committee, in 1995, also made recommendations for reform that were
criticised and were never taken up. In 1996, there was a Defamation Bill
tabled before the New South Wales Parliament that was never enacted. In
2004, the Federal Attorney-General called upon the states and territories to
‘harmonise’ their defamation laws, releasing the discussion paper ‘Outline of
Possible National Defamation Law’. In July 2004, a revised outline was
released, but, in November, the states and territories released a Defamation
Bill containing model provisions that are now the basis of the national
defamation law. Instead of a Code, as was suggested by the Attorney-
General’s discussion paper, the common law was adopted, except as
supplemented, by the proposed legislation.

National Defamation Law

22.8 By mid-2006, model defamation laws were enacted in all Australian
jurisdictions — nearly all entitled the Defamation Act and nearly all
commenced on 1 January 2006: Civil Law (Wrongs) Act 2002 (ACT) Ch 9
(commenced 23 February 2006); Defamation Act 2005 (NSW); Defamation
Act 2006 (NT) (commenced 26 April 2006); Defamation Act 2005 (Qld);
Defamation Act 2005 (SA); Defamation Act 2005 (Tas); Defamation Act 2005
(Vic); Defamation Act 2005 (WA).
The defamation legislation applies to causes of action on or after the
commencement date of the Act.

22.9 The legislation repeals all existing legislation related to defamation,

with the effect that the common law applies as modified by the new
legislation: Civil Law (Wrongs) Act 2002 (ACT) s 118; Defamation Act 2005
(NSW) s 6; Defamation Act 2006 (NT) s 5;

[page 547]

Defamation Act 2005 (Qld) s 6; Defamation Act 2005 (SA) s 6; Defamation

Act 2005 (Tas) s 6; Defamation Act 2005 (Vic) s 6; Defamation Act 2005
(WA) s 6. As explained by Basten JA in Fairfax Media Publications Pty Ltd v
Bateman (2015) 321 ALR 726 at [144], ‘these provisions conferred on the
courts the power to determine relevant aspects of the non-statutory law of
defamation, that is, the general law unaffected by current legislative
instruments, as appropriate today in Australia’.

22.10 Despite being referred to as the ‘uniform national defamation

legislation’, the legislation of each jurisdiction is not identical in all respects.

3 Description of Defamation
22.11 The law of defamation seeks to balance the protection of an
individual’s reputation and the right to freedom of expression by others: Jones
v Skelton [1963] 3 All ER 952; [1963] 1 WLR 1362. This balance is achieved by
the range of defences available: see Chapter 23.

Common Law
22.12 Defamation is the publication of matter which tends to lower a
person’s reputation in the estimation of his or her fellows by making them
think the less of that person, usually by bringing the person into hatred,
contempt or ridicule: Parmiter v Coupland (1840) 6 M & W 105; 151 ER 340.
Libel and slander
22.13 At common law, the law of defamation developed into two separate
torts — libel and slander — with the distinction between the two torts being
the method in which the defamatory matter was expressed or conveyed.

22.14 Libel A publication in durable form, such as writing, effigies

(Monson v Tussauds Ltd [1894] 1 QB 671) or pictures (Dunlop Rubber Co Ltd
v Dunlop [1921] 1 AC 367; Tolley v J S Fry & Sons Ltd [1931] AC 333) is
classified as libel, and is actionable without proof of actual damage. This is
because as the libel is in a permanent form, damage to reputation is assumed
upon publication: Ratcliffe v Evans [1892] 2 QB 524 at 530; Youssoupoff v
Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 at 584.

22.15 Slander A publication in transient form, such as gestures or speech

is classified as slander. To establish slander, a plaintiff needs to prove that
they have suffered material loss, referred to as ‘special damage’.
It became necessary that this actual loss be estimated in money terms. The
mere loss of the society of others was not enough: Allsop v Allsop (1860) 5 H
& N 534; 157 ER 1292. However, it was sufficient to show a tangible loss
deriving from the loss of society, for example the loss of meals, the monetary
value of which may be estimated: Albrecht v Patterson (1886) 12 VLR 597.

[page 548]

22.16 There were only four exceptional cases in which a slander was
actionable at common law without proof of actual damage, due to the
recognition that they were damaging to a person’s reputation. These were:
1. publications alleging unchastity in men or women in relation to a
profession and calculated to injure the person in business or
professional terms (Albrecht v Patterson (1886) 12 VLR 597;
 Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 5);
2. publications alleging a person was suffering from some infectious
or contagious disease (Bloodworth v Gray (1844) 7 Man & G 334;
135 ER 140);
3. publications alleging the commission of a crime (Gray v Jones
[1939] 1 All ER 798); and
4. publications alleging unfitness for a profession or calling, provided
the publication related to the person in a professional capacity:
Jones v Jones [1916] 2 AC 481.

22.17 Broadcasts There have been some inconsistent results where the
publication has been a combination of durable and transient forms; for
example, a written statement read aloud was held to be a libel in Forrester v
Tyrell (1893) 9 TLR 257 but a slander in Meldrum v Australian Broadcasting
Co Ltd [1932] VLR 425. The uncertainty concerning the distinction between
libel and slander arises most acutely in relation to radio and television
broadcasts and recordings containing defamatory statements, since usually
there is a tape or disc being used by the broadcaster which is in durable form,
although the actual publication is transient when published.
Section 206 of the Broadcasting Services Act 1992 (Cth) provides:
For the purposes of the law of defamation, the broadcasting or datacasting of matter is taken to
be publication of the matter in a permanent form.

See also Church of Scientology Inc v Anderson [1980] WAR 71; (1979) 46
FLR 202; Mickelbreg v 6PR Southern Cross Radio Pty Ltd (2001) 24 WAR 187.

Defamation Acts
22.18 The Defamation Acts do not define defamation, so the common law
principles continue to define the action. However, the distinction between
libel and slander no longer exists in any Australian jurisdiction. Therefore,
there is no need for a plaintiff to prove special damage in an action in
defamation as damage is presumed: Civil Law (Wrongs) Act 2002 (ACT) s
119; Defamation Act 2005 (NSW) s 7; Defamation Act 2006 (NT) s 6;
Defamation Act 2005 (Qld) s 7; Defamation Act 2005 (SA) s 7; Defamation
Act 2005 (Tas) s 7; Defamation Act 2005 (Vic) s 7; Defamation Act 2005
(WA) s 7.

4 Jurisdiction
22.19 One of the objectives of the national defamation legislation was to
prevent forum shopping by plaintiffs, that is, prevent plaintiffs from taking
action in a jurisdiction that would give them a better result. However,
jurisdiction will still be an issue if there is publication outside of an Australian
jurisdiction.
With the increasing use of modern technology, there is a greater risk of
defamatory material being available to a wider audience. The publication of
defamatory material on

[page 549]

the internet raises the issue as to which is the appropriate jurisdiction in

which to bring an action in defamation.

22.20 This jurisdictional issue has been recognised by the defamation

legislation. For example, s 11 of the Defamation Act 2005 (Qld) provides for
choice of law rules for matters that are published wholly or partly within an
Australian jurisdiction. If the matter is published only within a single
Australian jurisdiction, the defamation law of that place applies: Defamation
Act 2005 (Qld) s 11(1). If the matter is published in more than one Australian
jurisdiction, the law of the jurisdiction with which the harm from the
publication has its closest connection will apply: Defamation Act 2005 (Qld) s
11(2).

22.21 To determine which Australian jurisdiction is relevant in such a

situation, the court may take into account the normal residence of the
plaintiff, the extent of the publication in each relevant jurisdiction, the extent
of harm sustained by the plaintiff in each relevant jurisdiction and any other
matter the court thinks relevant: Defamation Act 2005 (Qld) s 11(3). See also
Civil Law (Wrongs) Act 2002 (ACT) s 123; Defamation Act 2005 (NSW) s 11;
Defamation Act 2006 (NT) s 10; Defamation Act 2005 (Qld) s 11; Defamation
Act 2005 (SA) s 11; Defamation Act 2005 (Tas) s 11; Defamation Act 2005
(Vic) s 11; Defamation Act 2005 (WA) s 11.

22.22 As for international publications of defamatory material, the correct

forum would be the jurisdiction where the plaintiff has a reputation. In
Zwambila v Wafawarova [2015] ACTSC 171, the publication took place in
Zimbabwe but the plaintiff, the Zimbabwean Ambassador to Australia and
New Zealand, was living in the Australian Capital Territory at the time. The
court considered that s 123 of the Civil Law (Wrongs) Act (ACT) was not
relevant as it applies to publication within Australia. It was held that as the
plaintiff’s residence and reputation provided a close connection with the
Australian jurisdiction and Zimbabwean law had not been pleaded (see Regie
Nationale das Usines Renault SA v Zhang (2002) 210 CLR 491), the correct
law to be applied was that of the Australian Capital Territory.

22.23 Prior to the defamation legislation, the High Court had considered
the issue of the correct jurisdiction in an action in defamation based upon
matter that originated from outside Australia. In Dow Jones & Co Inc v
Gutnick (2002) 210 CLR 575; 194 ALR 433, the issue was whether a
defamatory article in the United States financial press, which was on a website
accessible by subscription, could be the subject of proceedings in the
Victorian Supreme Court. The defendant argued that the proceedings in the
Victorian Supreme Court should have been stayed on the basis of the
doctrine forum non conveniens (the court is a clearly inappropriate forum to
determine the action: Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR
538). It was argued that, as the defamatory article was uploaded onto the
website in New Jersey in the United States, the law of that jurisdiction should
apply. The plaintiff contended that publication of the article took place in
Victoria when subscribers to the service downloaded the article in that state.
The evidence was that there were several hundred subscribers to the service in
Victoria. The High Court held that the law of Victoria was to apply to the
plaintiff’s claim. Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ
held (at [44]):
It is only when the material is in comprehensible form that the damage to reputation is done
and it is damage to reputation which is the principal focus of defamation, not any quality of the
defendant’s conduct. In the case of material on the World Wide Web, it is not available in
comprehensible form until downloaded on to the computer of a person who has used a web

[page 550]

browser to pull the material from the web server. It is where that person downloads the material
that the damage to reputation may be done. Ordinarily then, that will be the place where the tort
of defamation is committed.

As for the problems of defamation on the internet and the need for them to
be addressed, Kirby J stated (at [165]–[166]):
The notion that those who publish defamatory material on the Internet are answerable before
the courts of any nation where the damage to reputation has occurred, such as in the
jurisdiction where the complaining party resides, presents difficulties: technological, legal and
practical. It is true that the law of Australia provides protections against some of those
difficulties which, in appropriate cases, will obviate or diminish the inconvenience of distant
liability. Moreover, the spectre of “global” liability should not be exaggerated. Apart from
anything else, the costs and practicalities of bringing proceedings against a foreign publisher will
usually be a sufficient impediment to discourage even the most intrepid of litigants. Further, in
many cases of this kind, where the publisher is said to have no presence or assets in the
jurisdiction, it may choose simply to ignore the proceedings. It may save its contest to the courts
of its own jurisdiction until an attempt is later made to enforce there the judgment obtained in
 the foreign trial. It may do this especially if that judgment was secured by the application of
laws, the enforcement of which would be regarded as unconstitutional or otherwise offensive to
a different legal culture.

However, such results are still less than wholly satisfactory. They appear to warrant national
legislative attention and to require international discussion in a forum as global as the Internet
itself. In default of local legislation and international agreement, there are limits on the extent to
which national courts can provide radical solutions that would oblige a major overhaul of
longstanding legal doctrine in the field of defamation law. Where large changes to settled law are
involved, in an area as sensitive as the law of defamation, it should cause no surprise when the
courts decline the invitation to solve problems that others, in a much better position to devise
solutions, have neglected to repair.

22.24 In Bangoura v The Washington Post [2005] OJ No 3849, the plaintiff

was an employee for the United Nations and the Washington Post published a
series of articles claiming that the plaintiff had been subject to investigation
after allegations of sexual harassment, financial impropriety and nepotism. At
the time of publication, the plaintiff was stationed in Kenya but then
emigrated to Ontario, Canada, where he was a resident for two years before
he commenced proceedings. The articles had been posted on the Washington
Post’s website, where they appeared continuously; however, the Post only had
seven subscribers in the Ontario area.
At first instance, the Ontario Supreme Court followed the High Court
decision of Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; 194 ALR 433,
holding that there was a sufficient connection with Ontario to confer
jurisdiction upon the court, notwithstanding that the plaintiff did not
establish a reputation in the province until some years after the material was
published. This decision was overturned on appeal, finding that the
connection between the plaintiff and Ontario was minimal at best. In
addition, there was no evidence that the plaintiff’s reputation in Ontario had
suffered any damage and there was no significant connection between the
Post and the jurisdiction of Ontario. Dow Jones & Co Inc v Gutnick was
distinguished on the basis that, in that case, the plaintiff had resided in
Victoria at the time of publication and had a reputation within it, there was a
considerable
 [page 551]

readership of the defendant in Victoria and that the plaintiff had only
brought proceedings in that state. Clearly, residence alone will not be a
sufficient basis for jurisdiction, especially if the residence commences some
time after the publication takes place.

5 Elements of Defamation
22.25 To prove an action in defamation, the plaintiff must establish:
defamatory matter;
reference to the plaintiff; and
publication.

Defamatory Matter
22.26 With the Defamation Acts repealing all previous defamation
legislation, all jurisdictions in Australia now apply the common law meaning
of ‘defamatory matter’: Civil Law (Wrongs) Act 2002 (ACT) s 118(1);
Defamation Act 2005 (NSW) s 6(2); Defamation Act 2006 (NT) s 5(2);
Defamation Act 2005 (Qld) s 6(2); Defamation Act 2005 (SA) s 6(2);
Defamation Act 2005 (Tas) s 6(2); Defamation Act 2005 (Vic) s 6(2);
Defamation Act 2005 (WA) s 6(2).

22.27 There is no single test to be applied to be determined what may be

defamatory: Berkoff v Burchill [1996] 4 All ER 1008 at 1011. In general terms,
a plaintiff is said to be defamed if the publication complained of causes the
reasonable person to think less of them: Readers Digest Services Pty Ltd v
Lamb (1982) 150 CLR 500. In Random House Australia Pty Ltd v Abbott
(1999) 167 ALR 224 at [22], Beaumont J stated:
 The test for what may be defamatory at common law is well established. A publication, without
justification or lawful excuse, exposing a person to hatred, contempt or ridicule, calculated to
injure that person’s reputation, is a libel. But this is not to be taken as an exhaustive statement.
… the substantive legal issue here may be expressed as whether the material complained of was
defamatory of the plaintiffs in that it was to his or her “discredit … [tended] to lower him [or
her] in the estimation of others … to expose him [or her] to hatred, contempt or ridicule, or to
injure his [or her] reputation in his [or her] trade or profession”: see Chakravarti v Advertiser
Newspapers (1998) 154 ALR 294; 193 CLR 519 per Gaudron and Gummow JJ at 545 quoting
Gatley on Libel and Slander (8th ed, 1981), para 31.

22.28 The tests applied (see 22.38) to determine if something is

defamatory require an objective standard to be applied, that is, how a
reasonable person would understand the matter. In defamation law, this
reasonable person is referred to as the ‘hypothetical referee’.

The hypothetical referee

22.29 It is a question of law for the judge to determine whether a matter is
capable of bearing a defamatory meaning (Adam v Ward [1917] AC 309) and
this is done by judging the defamatory matter with reference to the
hypothetical referee.

22.30 In Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500; 38
ALR 417, Lamb sued Reader’s Digest as publishers of a book entitled ‘Great
Cases of Scotland Yard’, on the

[page 552]

basis that a passage in the book, in its natural and ordinary meaning, imputed
that he had exploited his position to get a sensational story. The appeal was
against evidence given relating to journalistic ethics.
The court considered the question of in whose minds the statement must
be considered defamatory. Brennan J stated (at CLR 506; ALR 421):
… whether the alleged libel is established depends upon the understanding of the hypothetical
 referees who are taken to have a uniform view of the meaning of the language used and upon the
standards, moral or social, by which they evaluate the imputation they understand to have been
made. They are taken to share a moral or social standard by which to judge the defamatory
character of that imputation being a standard common to society generally.

22.31 The hypothetical referee has been defined in many varied ways. In
Farquhar v Bottom [1980] 2 NSWLR 380 at 386, it was stated that there is an
assumption that ‘the ordinary reasonable reader is a person of fair average
intelligence, who is neither perverse, nor morbid or suspicious of mind, nor
avid for scandal’. In Lewis v Daily Telegraph Ltd [1964] AC 234 at 286, the
phrase ‘fair minded’ was used. In Favell v Queensland Newspapers Pty Ltd
(2005) 221 ALR 186; 79 ALJR 1716, Kirby J discussed the meaning of
‘ordinary reasonable reader’ and was critical, stating that ‘[i]t would be
preferable to drop this fiction altogether’: at [24].
In Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 406; 254 ALR
606, the High Court discussed the general test for defamation. The judgment
made the following points:
there is no moral judgment of the plaintiff on the part of the
hypothetical referee: at [37];
the expression ‘right thinking’ should be taken ‘to describe a person
who shares the standards of the general community’ which implies a
standard of decency: at [38] and [40]; and
there are many standards within the general community — social,
ethical and moral: at [43].
Despite the lack of any definitive test, the test at least can be said to be an
objective one — what would an ordinary person have thought the words
meant?

22.32 It is irrelevant whether or not the defendant intended to defame the

plaintiff: Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331 at 354. It is
only relevant to consider whether the ordinary right-minded member of
society would have thought the words were defamatory.
22.33 Sectional attitudes of society To be capable of having defamatory
meaning, it must be by reference to the general community standards and not
sectional attitudes: Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR
500; 38 ALR 417. Therefore, if an imputation would damage the reputation of
the plaintiff among only a small or disreputable minority, it is not defamatory
unless the views of that minority reflect that of the general community: Byrne
v Deane [1937] 2 All ER 204.

22.34 The fact that the defamatory imputation may have had an especially
adverse impact upon the plaintiff’s reputation in the eyes of some group or
class in the community

[page 553]

would be relevant only as regards the question of assessing damages. In Byrne

v Deane [1937] 2 All ER 204, the plaintiff, Byrne, was a member of a golf club.
The defendants were the owners and secretary of the club. Someone reported
to the police that poker machines were kept on the club premises and the
police seized the machines. A poem was placed on the wall of the club which
clearly implied that it was the plaintiff, Byrne, who had reported the machines
to the police.
The court held by a majority of 2:1 that there was no defamatory meaning.
Slesser LJ stated (at 209):
To allege of a man … that he has reported certain acts, wrongful in law, to the police, cannot
possibly be said to be defamatory of him in the minds of the general public. We have to consider
in this connection the arbitrium boni, the view which would be taken by the ordinary good and
worthy subject of the King … and I have assigned to myself no other criterion than what a good
and worthy subject of the King would think of some person of whom it had been said that he
had put the law into motion against wrongdoers, in considering that such a good and worthy
subject would not consider such an allegation in itself to be defamatory.

It was not relevant that the statement might bring the plaintiff into
disrepute within the club. It was considered that good and worthy subjects of
the king would not consider that the matter was defamatory. The very
statements that were likely to bring him into disrepute with the criminal class
would raise his status in the estimation of society in general.

22.35 In contrast to the decision in Byrne v Deane [1937] 2 All ER 204,

statements by Hunt J in the New South Wales Supreme Court decision in
Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536 at 544 suggested
that matter is capable of being defamatory even if it will only be regarded as
such by persons possessed of a particular attitude:
There are cases where a plaintiff relies upon the existence of a particular attitude towards certain
behaviour which is held by one group within the community which is not an attitude held by the
general community. An example is the disapproval of certain practices which is expressed by
particular religious or ethnic groups but which is not the subject of such disapproval by the
general community apart from those groups. In such cases, it is necessary for the plaintiff to
plead that sectional attitude as an extrinsic fact or circumstance, and his case will then (within
certain limits not here relevant) proceed upon the basis that publication in a defamatory sense is
alleged only in relation to the publication to members of that particular group.

In such cases, the test will still be an objective one, although it would take
into account that sectional attitude as an extrinsic fact or circumstance.

22.36 Current community standards Statements must be viewed in light

of prevailing community standards as well as in view of the context in which
they are made and circumstances of time and place. In Greek Herald Pty Ltd v
Nikolopoulos (2002) 54 NSWLR 165 at [26], Mason P, noting that ‘it is well
established that the words complained of must be construed as a whole and in
context’, adopted the observation of Holmes J in Towne v Eisner (1918) 245
US 418 at 425:
A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may
vary greatly in color and content according to the circumstances and the time in which it is
used: at [21].

[page 554]
 For example, in 1934 in Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd
(1934) 50 TLR 581, the implication that the plaintiff had been raped was held
to be defamatory. It would be hoped that the attitude of society towards
women who have been raped in the present day would be different to that in
the 1930s: Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536 at 545.
In John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77, the High
Court discussed changing attitudes of society to various imputations. Kirby J
stated (at [140]):
In most circumstances, it ought not to be the case in Australia that to publish a statement that
one adult was involved in consenting, private homosexual activity with another adult involves a
defamatory imputation. But whether it does or does not harm a person’s reputation to publish
such an imputation is related to time, personality and circumstance. Once, it was highly
defamatory in many countries to allege, or suggest, that a person was a communist. Now, in
most circumstances, it would be a matter of complete indifference. The day may come when, to
accuse an adult of consenting homosexual activity is likewise generally a matter of indifference.
However, it would ignore the reality of contemporary Australian society to say that that day has
arrived for all purposes and all people. At least for people who treat their sexuality as private or
secret, or people who have presented themselves as having a different sexual orientation, such an
imputation could, depending on the circumstances, still sometimes be defamatory.

See Tassone v Kirkham [2014] SADC 134 at [35] (imputation of

homosexuality held not to be defamatory).

Tests for what may be defamatory

22.37 In Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 406; 254
ALR 606 at [36], it was confirmed that to be defamatory matter it must injure
the plaintiff’s reputation, which was said to be ‘all aspects of a person’s
standing in the community’, citing Berkoff v Burchill [1996] 4 All ER 1008 at
1018.

22.38 The case law establishes that matter may be defamatory if it has:
exposed the plaintiff to hatred, ridicule or contempt (Parmiter v
Coupland (1840) 6 M & W 105);
lowered the plaintiff in the estimation of others (Sim v Stretch [1936] 2
 All ER 1237);
injured the plaintiff in their trade or profession (Chakravarti v
Advertiser Newspapers (1998) 154 ALR 294; 193 CLR 519); or
caused the plaintiff to be shunned or avoided: Youssoupoff v Metro-
Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581.

22.39 Expose the plaintiff to hatred, contempt or ridicule In Parmiter v

Coupland (1840) 6 M & W 105 at 108, Parke B stated that matter will be
defamatory if it is likely to injure the reputation of the plaintiff by exposing
them to ‘hatred, contempt or ridicule’. For example, in Ettingshausen v
Australian Consolidated Press Ltd (1991) 23 NSWLR 443, the defendant’s
magazine published a photo of the plaintiff, a well-known rugby league
player, in the shower. The grainy photo was capable of being interpreted as
showing the plaintiff’s genitals. Hunt J of the New South Wales Supreme
Court held that the publication

[page 555]

of the photo was capable of subjecting the blameless plaintiff to more than a
trivial degree of ridicule and, therefore, was capable of defaming the plaintiff
on this ground alone. See also Obermann v ACP Publishing Pty Ltd [2001]
NSWSC 1022; Random House Australia Pty Ltd v Abbott (1999) 94 FCR 296;
167 ALR 224.
In Berkoff v Burchill [1996] 4 All ER 1008, describing the plaintiff, who was
a well-known actor, as ‘hideously ugly’ was held by a majority of the English
Court of Appeal to be defamatory. Neill LJ stated (at 1018):
It seems to me that to say this of someone in the public eye who makes his living, in part at least,
as an actor, is capable of lowering his standing in the estimation of the public and of making
him an object of ridicule.

In Hanson-Young v Bauer Media Ltd [2013] NSWSC 1306, the defendant

argued that the article containing a photograph with the plaintiff’s face
superimposed onto the body of a woman’s body wearing a bikini was clearly
intended to be a joke. The court held that even if the article could be
construed as a joke, it was still possible that as it held the plaintiff up to
ridicule, it could be defamatory even though it does not attribute any moral
blame to the plaintiff.

22.40 Legislation also exists that makes it unlawful to publish matter that
incites hatred, contempt or ridicule on grounds of race or sexual orientation:
see, for example, Anti-Discrimination Act 1977 (NSW); Anti-Discrimination
Act 1991 (Qld); Equal Opportunity Act 1984 (WA).

22.41 Lower the plaintiff in the estimation of others The test of hatred,
contempt or ridicule was thought to be ‘too narrow’ by Lord Atkin in Sim v
Stretch [1936] 2 All ER 1237 at 1240. His Lordship suggested (at 1240) that
the test was ‘would the words tend to lower the plaintiff in the estimation of
right-thinking members of society generally?’ In Radio 2UE Sydney Pty Ltd v
Chesterton (2009) 238 CLR 406; 254 ALR 606 at [37], it was pointed out that
this does not require the exercise of moral judgment; it ‘simply conveys a loss
of standing is some respect’. Therefore, if the statement has the tendency to
lower the plaintiff in the estimation of others, often referred to as
‘disparagement’, it will be capable of being defamatory matter.

22.42 A statement must disparage, that is, impute blame to the plaintiff. In
John Fairfax & Sons Ltd v Punch (1980) 31 ALR 624, it was held that it was
defamatory to imply that the leader of a political party had lost the confidence
of a significant number of its members. The statement was disparaging of the
reputation of the plaintiff as a leader because it questioned their ability to lead
the party to electoral success and imputed incompetence.

22.43 A matter that only injures the plaintiff’s pride or feelings but does
not lower their reputation will not be defamatory. For example, in Boyd v
Mirror Newspapers Ltd [1980] 2 NWSLR 449, a newspaper article that
described the plaintiff footballer as ‘fat’ and ‘slow’ was held not to disparage
him because no blameworthiness was implied.

22.44 If the defamatory imputation concerns the illegal activities of the

plaintiff, there is no defamation unless the imputations damage the
reputation of the plaintiff separate from his or her illegal activities. The
rationale for this is that a court will not assist a plaintiff

[page 556]

seeking compensation for an illegal activity. In Kings Cross Whisper Pty Ltd v
Ray (1970) 72 SR (NSW) 339 at 344, the court held:
If a person carried on a trade, business or calling illegally, then the law will not aid him in a
defamation action to recover compensation in respect of damage to any reputation acquired in
so carrying on such trade, business or calling. It is not a question of the defendant justifying the
defamatory statement, but of the court declining to lend its aid to the recovery of compensation
for damage to a reputation acquired in an illegal pursuit. It is not sufficient, in order to defeat a
claim for damages, merely to show that the defamatory statements which were published
concerned or referred to an illegal pursuit, for such statements are actionable if they reflect upon
and damage a plaintiff’s reputation in respects other than in relation to the illegal pursuit.

22.45 Injure plaintiff in trade or profession It is possible that the

defamatory matter is relevant to the plaintiff’s professional reputation rather
than their personal reputation. The defamatory matter may attack the trade
or professionalism of the plaintiff, and if the matter is about the business, the
plaintiff may still have an action if it involves ‘some reflection upon [the
plaintiff’s] personal character or upon the mode in which [the plaintiff]
carries on [their] business’: Sungravure Pty Ltd v Middle East Airlines
Airliban SAL (1975) 134 CLR 1 at 13. See, for example, John Fairfax
Publications Pty Ltd v Gacic (2007) 230 CLR 291; 235 ALR 402, where it was
held that a review of a restaurant was defamatory of the owners. Callinan and
Heydon JJ explained (at [190]):
Business capacity and reputation are different from personal reputation. Harm to the former
 can be, as here, inflicted more directly and narrowly than harm to a person’s reputation. A
person who does not have an admirable character may be a very good restaurateur. It might be
possible to say things about him or her personally that are not defamatory, but not about that
person as a restaurateur in relation to the conduct of the restaurant. Restaurant standards rather
than community ones are the relevant standards in that situation. No community standard or
value could obliterate or alter the defamatory meaning of the imputations in this case. It is
unimaginable, in any event, that the estimation of the respondents in the mind of any adult
person, let alone a reasonable reader, would not be lowered by a statement that they sold
unpalatable food and provided bad service at their restaurant, and did so for considerable sums
of money.

See also Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 406; 254
ALR 606 at [10], where the High Court stated:
It is not in dispute that persons may be defamed in their business reputation. The common law
has for some time recognised that words may not only reflect adversely upon a person’s private
character, but may injure a person in his or her office, profession, business or trade. This may be
so where the words reflect upon the person’s fitness or ability to undertake what is necessary to
that business, profession or trade. But in each case the injury spoken of is that to the person’s
reputation.

If the defamatory material is an injury to the plaintiff’s business, not their

reputation, the correct action is injurious falsehood: see 24.87.

22.46 Cause plaintiff to be shunned or avoided Statements which cause

people to shun or avoid the plaintiff are capable of being defamatory:
Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1 at
23–4; Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 at
587. This does not require any imputation of moral

[page 557]

blame: Random House Australia Pty Ltd v Abbott (1999) 94 FCR 296; 167
ALR 224 at [22]. In Berkoff v Burchill [1996] 4 All ER 1008 at 1020–1, Phillips
LJ, discussing whether describing someone as ugly would cause people to
shun or a void them, held:
In my judgment, such a statement [that a person is ugly] differs in principle from those
 statements about a person’s physical condition which have been held to be defamatory. Those
statements have, in every case, been allegations of fact — illness, madness, filthiness or
defilement. Hearsay factual statements about a person’s physical condition can clearly be
capable of causing those who hear or read them to avoid the subject of them. In contrast, a
statement that a person is ugly, or hideously ugly, is a statement of subjective appreciation of
that individual’s features. To a degree both beauty and ugliness are in the eye of the beholder. It
is, perhaps, just possible to think of a right minded person shunning one of his fellow men
because of a subjective distaste for his features. What I find impossible to accept is that a right
minded person would shun another merely because a third party had expressed distaste for that
other person’s features.

See, for example, in Morgan v Lingen (1863) 8 LT 800, describing someone

as insane was defamatory and in Henry v TVW Enterprises Ltd (1990) 3 WAR
474, an imputation of hepatitis B (an infectious disease) was defamatory.
In Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd, Princess Irina
Alexandrovna, the wife of Russian Prince Youssoupoff, claimed damages for
libel in a sound film about Rasputin which suggested that the fictional
character of Princess Natasha had been seduced by Rasputin. The English
Court of Appeal recognised that the plaintiff would be ostracised by society to
a certain degree. Slesser LJ commented (at 587):
One may, 1 think, take judicial notice of the fact that a lady of whom it has been said that she has
been ravished, albeit against her will, has suffered in social reputation and in opportunities of
receiving respectful consideration from the world.

Pleading the defamatory meaning

22.47 When suing in defamation, the plaintiff specifies the alleged
defamatory matter and pleads the imputations and the defamatory meaning,
that is, the interpretation of the publication. The meaning intended by the
defendant is irrelevant, as the meaning is determined objectively: Sim v Daily
Telegraph Ltd [1968] 2 QB 157 at 172.

22.48 It is possible to plead more than one imputation arising from the
defamatory material as more than one meaning may be conveyed. Regardless
of how many imputations are pleaded by the plaintiff, only one cause of
action exists: Civil Law (Wrongs) Act 2002 (ACT) s 120; Defamation Act
2005 (NSW) s 8; Defamation Act 2006 (NT) s 7; Defamation Act 2005 (Qld) s
8; Defamation Act 2005 (SA) s 8; Defamation Act 2005 (Tas) s 8; Defamation
Act 2005 (Vic) s 8; Defamation Act 2005 (WA) s 8.
The imputations pleaded by the plaintiff form the limits of the action. In
Lloyd v David Syme & Co Ltd [1986] AC 350 at 361–2; (1985) 63 ALR 83 at
87, Lord Keith of Kinkel of the Privy Council commented:
The parties, the court and jury are alike tied to the imputations set out by the plaintiff in his
pleadings; it is not for the court or jury to consider whether the matter bears or is capable of
bearing some other defamatory imputation. The onus lies upon the plaintiff in a jury trial to
satisfy the jury that the matter published would convey to the recipients of it, or some of them,

[page 558]

one or more of the defamatory imputations pleaded; if he fails to do so he loses that action
although he may have a separate cause of action in respect of some other defamatory meaning
which he has not pleaded.

22.49 However, in Chakravarti v Advertiser Newspapers (1998) 154 ALR

294; 193 CLR 519, the High Court thought that this inflexible rule was not
appropriate. Brennan CJ and McHugh J stated (at [24]):
If the defendant is, or might reasonably be thought to be, prejudiced, embarrassed or unfairly
disadvantaged by the departure — whether in pleading or preparing for trial, or adducing
evidence or in conducting the case before verdict — the plaintiff will be held to the meaning
pleaded. If the meaning pleaded goes to the jury and is not found by the jury, the plaintiff fails. If
there be no unfair disadvantage to the defendant by allowing another defamatory meaning to be
relied on and to go to and be considered by the jury — as where the plaintiff seeks to rely on a
different nuance of meaning or, oftentimes, merely a less serious defamation — the different
defamatory meaning may be found by the jury.

22.50 The defamatory meaning may arise in different ways, through

natural and ordinary meaning or true innuendo, but whichever is relied
upon, the matter must be looked at in context: Berkoff v Burchill [1996] 4 All
ER 1008. See, for example, Obermann v ACP Publishing Pty Ltd [2001]
NSWSC 1022 (photo of plaintiff in pornographic magazine). Hunt CJ stated
in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
at 165:
The mode or manner of publication is a material matter in determining what imputation is
capable of being conveyed. The reader of a book, for example, is assumed to read it with more
care than he or she would read a newspaper. The more sensational the article in a newspaper,
the less likely is it that the ordinary reasonable reader will have read it with the degree of
analytical care which may otherwise have been given to a book, and the less the degree of
accuracy which would be expected by the reader. The ordinary reasonable reader of such an
article is understandably prone to engage in a certain amount of loose thinking. There is a wide
degree of latitude given to the capacity of the matter complained of to convey particular
imputations where the words published are imprecise, ambiguous, loose, fanciful or unusual.
[footnotes omitted]

See also Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652. In
that case a series of articles was published, reporting that the Federal
Treasurer was attending select events to make himself available to persons
who made donations to a particular political fundraising body. This was
essentially accurate; however, there were also placards advertising the articles
and tweets linking the articles that contained the words ‘Treasurer for Sale’.
The court treated the placards as a discrete publication, following World
Hosts Pty Ltd v Mirror Newspapers Ltd [1976] 1 NSWLR 712 at 725, where it
was held that posters may be published to persons who do not read the
newspaper itself. In respect of the tweets, White J held that although they may
have provided the reader with easier access to the article through the
hyperlink, it was ‘not a reason for concluding that all readers of the tweet will
exercise that access. Some may read the tweet without going further’: at [207].

22.51 A defendant may be able to establish to the satisfaction of a jury that,

in the particular context, an imputation amounts to a jest or mere general
abuse and is not defamatory in

[page 559]

the circumstances: Penfold v Westcote (1806) 2 Bos & Pal (NR) 335; 127 ER
656; Mundey v Askin [1982] 2 NSWLR 369.

22.52 Natural and ordinary meaning The matter may be capable of

having a defamatory meaning on its face, that is, its natural and ordinary
meaning, for example a statement describing someone as a thief.
The natural and ordinary meaning is the basis for construction of words in
a defamation action: Lewis v Daily Telegraph Ltd [1964] AC 234; Reader’s
Digest Services Pty Ltd v Lamb (1982) 150 CLR 500; 38 ALR 417. In Harrison
v Thornborough (1713) 10 Mod 196 at 198; 88 ER 691 at 691–2, it was stated:
The rule therefore that has now prevailed is, that words are to be taken in that sense that is most
natural and obvious, and in which those to whom they are spoken will be sure to understand
them.

In Jones v Skelton [1963] 3 All ER 952 at 958; [1963] 1 WLR 1362 at 1370–
1, it was stated:
The ordinary and natural meaning of words may be either the literal meaning or it may be an
implied or inferred or an indirect meaning: any meaning that does not require the support of
extrinsic facts passing beyond general knowledge but is a meaning which is capable of being
detected in the language used can be a part of the ordinary and natural meaning of words [see
Lewis v Daily Telegraph Ltd [1964] AC 234]. The ordinary and natural meaning may therefore
include any implication or inference which a reasonable reader, guided not by any special but
only by general knowledge, and not fettered by any strict legal rules of construction, would draw
from the words. The test of reasonableness guides and directs the court in its function of
deciding whether it is open to a jury in any particular case to hold that reasonable persons would
understand the words complained of in a defamatory sense.

22.53 When the natural and ordinary meaning is being relied upon, no
evidence may be admitted to establish the meaning: Reader’s Digest Services
Pty Ltd v Lamb (1982) 150 CLR 500; 38 ALR 417.

22.54 Implied meaning If a plaintiff pleads the natural and ordinary

meaning as being defamatory, this will include any implication or inferences,
referred to as ‘false innuendo’. In Amalgamated Television Services Pty Ltd v
Marsden (1998) 43 NSWLR 158 at 165, Hunt CJ summarised as follows:
The ordinary reasonable meaning of the matter complained of may be either the literal meaning
of the published matter, or what is implied by that matter, or what is inferred from it. In
 deciding whether any particular imputation is capable of being conveyed, the question is
whether it is reasonably so capable, and any strained or forced or utterly unreasonable
interpretation must be rejected. The ordinary reasonable reader (or listener or viewer) is a
person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind,
nor avid for scandal. That person does not live in an ivory tower but can and does read between
the lines in the light of that person’s general knowledge and experience of worldly affairs.
[footnotes omitted]

In Quigley v Wallace [2015] WASC 479, the court dealt with an application
to strike out parts of the plaintiff’s statement of claim for failure to disclose a
reasonably arguable cause of action. One of the pleaded imputations of a post
on a website was that the plaintiff was a coward, having coward punched the
defendant. The defendant argued that it could not be

[page 560]

understood that the plaintiff was being described as a coward by using an act
of violence. The judge disagreed, reasoning at [41]:
Whilst it is correct that the words complained of in the Post do attribute aggressive, even
violent, behaviour … the term “coward punch” or “coward punching” is now a commonly
encountered modern day expression in contemporary Australia. Strong anti-violence public
campaigns rightly characterising “one punch” assaults as despicable conduct — on a basis that
they are the actions of a coward, are commonly aired across mainstream or even social media.

22.55 In Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; 79
ALJR 1716, the respondent reported in its newspaper that the appellants’
house had burnt down while they were away overseas. Reference was made in
the report to the controversial development application of the appellants in
respect of the property. The appellants alleged that the report defamed them
as it implied that they had committed arson and were suspected by the police
of having committed arson. Gleeson CJ, McHugh, Gummow and Heydon JJ
stated (at [12]):
A mere statement that a person is under investigation, or that a person has been charged, may
not be enough to impute guilt. If, however, it is accompanied by an account of the suspicious
circumstances that have aroused the interest of the authorities, and that points towards a
 likelihood of guilt, then the position may be otherwise. There is an overlap between providing
information and entertainment, and the publishing of information coupled with a derogatory
implication may fall into both categories. It may be that a bare, factual, report that a house has
burned down is less entertaining than a report spiced with an account of a suspicious
circumstance. At this preliminary stage of the proceedings, the respondents have not yet had an
opportunity to indicate why it was considered relevant to the story about the fire to link it with
the development application.

Their Honours referred to the judgment of Lord Devlin in Lewis v Daily

Telegraph Ltd [1964] AC 234 at 269, where it was noted that ‘ordinary readers
draw implications much more freely, especially when they are derogatory’: at
[11].

22.56 Any strained, or forced, or utterly unreasonable interpretation of

words must be rejected: Jones v Skelton [1963] 3 All ER 952; [1963] 1 WLR
1362; Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; 79 ALJR
1716 at [9].

22.57 True innuendo It is also possible that the material is only capable of
having a defamatory meaning if the person to whom the matter is published
has knowledge of certain extrinsic facts. This is referred to as ‘true innuendo’:
Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331; Hough v London
Express Newspaper Ltd [1940] 2 KB 507; Lewis v Daily Telegraph Ltd [1964]
AC 234; Tolley v J S Fry & Sons Ltd [1931] AC 333.

22.58 The special facts and knowledge must be pleaded to support a true
innuendo: Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 406; 254
ALR 606 at [60] (if imputation requires knowledge of facts within the
plaintiff’s business or trade, those facts will need to be pleaded).
Strictly, innuendo is confined to inferences which may be drawn only with
the aid of extrinsic evidence: Grubb v Bristol United Press Ltd [1963] 1 QB
309. In Radio 2UE Sydney Pty Ltd v Chesterton at [51], it was stated: ‘The
essential requirement of the plea is that
 [page 561]

the matter is not one within the general knowledge of the hypothetical
referees’.2 Where a plaintiff relies on some special meaning to be given to
words included in published matter, that special meaning is the extrinsic fact:
Toomey v John Fairfax & Sons Ltd (1985) 1 NSWLR 291.

22.59 In Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR

581, the scene complained of in the film portrayed Rasputin seducing or
raping a princess of the Russian royal house. Later in the film, the princess
marries a nobleman involved in the killing of Rasputin. Princess Irina
Alexandrovna, of the Russian royal house, established that persons knowing
some, if not all, of the circumstances of the incidents portrayed would take
the character of the princess as representing herself and that to portray that
she was seduced or raped by this person of very bad character whom her
fiancé later kills, was defamatory.
In Byrne v Deane [1937] 2 All ER 204, the proprietors and directors of a
golf club were sued by a member who alleged he had been defamed by a verse
anonymously published on a notice board in respect of informing the police
of illegal use of gaming machines on the premises. The lampoon went as
follows:
For many years upon this spot
You heard the sound of a merry bell
Those who were rash and those who were not
Lost and made a spot of cash
But he who gave the game away
May he byrnn in hell and rue the day.

The plaintiff, in the statement of claim, stated:

By the said words the defendants meant and were understood to mean that the plaintiff had
reported to the police the presence of the said machines upon the said premises, that he was
guilty of underhand disloyalty to the defendants and his fellow members of the said club and
that by reason of the said facts his conduct was deserving of the gravest censure, that he was a
 person devoid of all true sporting spirit and further that he was a person unfit for other
members of the club to associate with and should be ostracised by them.

Without knowledge of extrinsic facts, such as the gaming machines having

bells and that a complaint had been made to police, the ordinary meaning of
the words could not convey defamatory meaning. As Slesser LJ commented
(at 208–9):
… the words as set out in the statement of claim cannot on any view be taken to be defamatory
apart from the innuendo. I do not think that, taken by themselves, they form any ground of
complaint, and, as I understand the case, it was treated upon the basis that the innuendo
contained the alleged defamatory meaning of these words, and not the words in their natural
and ordinary meaning.

22.60 Even something as apparently innocuous as the use of the symbol

‘R/D’ (refer to drawer) on a cheque may be defamatory when returned to a
payee because it amounts

[page 562]

to the serious matter of dishonour of a cheque which reasonable people might

think, in all probability, a bank had dishonoured on a ground discreditable to
the drawer: Miles v Commercial Banking Co of Sydney (1904) 1 CLR 470;
Aktas v Westpac Banking Corporation Ltd (2010) 241 CLR 79; 268 ALR 409.
In State Bank of New South Wales Ltd v Currabubula Holdings Pty Ltd (2001)
51 NSWLR 399, it was held that the phrase ‘in liq’ on a bank balance could be
defamatory of the account holder.

Defamatory on the Facts

22.61 Once it is determined as a question of law that a matter is capable of
being defamatory, it is then a question of fact whether the matter is
defamatory in the circumstances: Thompson v ‘Truth’ and ‘Sportsman’ Ltd
(No 4) (1932) 34 SR (NSW) 21; Jones v Skelton [1963] 3 All ER 952 at 958;
[1963] 1 WLR 1362 at 1370; Sergi v Australian Broadcasting Commission
[1983] 2 NSWLR 669.

22.62 Questions of fact are determined by a jury, or if there is no jury, by

the court. In New South Wales, Queensland, Tasmania, Victoria and Western
Australia, either the plaintiff or the defendant may elect for the defamation
proceedings to be tried by a jury: see Defamation Act 2005 (NSW) ss 21(1),
22(2); Defamation Act 2005 (Qld) ss 21(1), 22(2); Defamation Act 2005 (Tas)
ss 21(1), 22(2); Defamation Act 2005 (Vic) ss 21(1), 22(2); Defamation Act
2005 (WA) ss 21(1), 22(2). Jury trials are abolished in the Australian Capital
Territory and South Australia in respect of all civil trials (Supreme Court Act
1933 (ACT) s 22; Juries Act 1927 (SA) s 5) and in the Northern Territory in
respect of civil defamation trials: Juries Act 1963 (NT) s 6A.

22.63 Appellate courts are reluctant to interfere with a jury’s decision that
material is defamatory: Australian Newspaper Co Ltd v Bennett [1894] AC
284; Cairns v John Fairfax & Sons Ltd [1983] 2 NSWLR 708. In John Fairfax
Publications Pty Ltd v Rivkin (2003) 201 ALR 77 at [185], Callinan J stated
that ‘a finding of a jury may only be overturned if it is one that no reasonable
jury could reach’. However, in John Fairfax Publications Pty Ltd v Gacic
(2007) 230 CLR 291; 235 ALR 402, the High Court agreed with the Court of
Appeal’s decision to overturn the finding of the jury that a review of the
respondent’s restaurant that contained the defamatory imputations that it
sold unpalatable food and provided bad service were not in fact defamatory of
the owners. Gleeson CJ and Crennan J held (at [13]):
There was every reason to suppose that the jury, having found that the imputations were
conveyed, decided they were not defamatory because of a misunderstanding of what was meant
by defamatory.

Reference to the Plaintiff

22.64 The plaintiff must show that the defamatory matter is about them:
Knupffer v London Express Newspaper Ltd [1944] AC 116 at 121; Sungravure
Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1 at 23.
This is a question of fact and the relevant test is whether a reasonable
person, having knowledge of the relevant circumstances, would understand
the material as referring to the plaintiff: E Hulton & Co v Jones [1910] AC 20.

[page 563]

Identified expressly
22.65 If the plaintiff is named in the defamatory material, there has been
sufficient identification for a defamation action. If the plaintiff is named, it is
not necessary for the plaintiff to prove that the matter was published to
people who knew them (Mirror Newspapers Ltd v World Hosts Pty Ltd (1979)
141 CLR 632; 23 ALR 167), but it must be established that the matter may be
understood to be referring to the plaintiff: Consolidated Trust Co Ltd v
Browne (1948) 49 SR (NSW) 86.

22.66 It is not necessary that the material expressly name the plaintiff for it
to be referable to the plaintiff. Identification may be by a photograph or
picture, or may refer to them by their title, for example Prime Minister:
Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 at 91. In Henry v
TVW Enterprises Ltd (1990) 3 WAR 474, film footage of the plaintiff’s hands
performing a dental procedure for which he was well known and the pink of
the dental nurse’s uniform was held to be sufficient to identify the plaintiff.

22.67 It is not necessary that the defendant knew of the plaintiff as

intention of the defendant is irrelevant. An innocent publication of what the
defendant believes to be a fictitious name may identify the plaintiff for a
defamation action if the name is the same as theirs: E Hulton & Co v Jones
[1910] AC 20.
22.68 Similarly, the fact the publisher intended to refer to a different
person will not prevent persons having the same name showing that the
publication was reasonably referable to them: Lee v Wilson (1934) 51 CLR
276. In that case, a newspaper alleged that a Detective Lee of the Victorian
police force was guilty of misconduct. In fact, there were two Detective Lees
and a Constable Lee, who was the subject of the article. The High Court held
that if the defamatory material is capable of referring to more than one
person, then all who may reasonably be understood to have been referred to
may bring an action, even if it was the intention of the defendant to refer to
someone else. In Hall v Queensland Newspapers Pty Ltd [2002] 1 Qd R 376, a
newspaper article referred to ‘Judge Clive Hall’. Despite the fact that the
plaintiff was Judge Robert Hall and that the article was intended to refer to
Judge Clive Wall, the plaintiff was successful in proving that reasonable
readers of the article would believe that the article was referring to him. See
also Zoef v Nationwide News Pty Ltd [2015] NSWDC 232, where the plaintiff’s
son, who had the same name as him, was arrested for possessing guns and the
news reports referred to the plaintiff’s business as a tailor. The court held that
as the plaintiff was named and the article contained sufficient personal
details, the plaintiff was identified.

22.69 It is the usual practice in books and other productions, such as

movies and television programs, to include a disclaimer that all characters
and events in the publication are fictional and have no reference to any
person alive or dead. The effect of such a disclaimer may be taken into
account when determining whether the publication is reasonably referable to
the plaintiff. If, despite the disclaimer, a reasonable person would still believe
that the defamatory material is referring to the plaintiff, as the intention of
the defendant is irrelevant, the disclaimer will not prevent the defendant from
being held liable. For example, in Australian Broadcasting Corporation v
Hanson [1998] QCA 306 at 8,
 [page 564]

it was noted, ‘[i]t is facile to suggest that the appellant could avoid liability by
prefacing the song [the defamatory matter] with its disclaimer’.

Identified indirectly
22.70 It is not necessary that the plaintiff be expressly identified as
otherwise liability could be avoided simply by not naming the plaintiff:
Hayward v Thompson [1982] 1 QB 47 at 60. If the plaintiff is not named or
described, but people with knowledge of the plaintiff would be able to
understand that the defamatory matter was referring to the plaintiff, the
plaintiff must establish that the matter had been published to those persons:
Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 at 89.

22.71 The plaintiff may not be named or pictured but still be able to prove
that the publication was connected to them. In Cassidy v Daily Mirror
Newspapers Ltd [1929] 2 KB 331, a newspaper published a photograph of the
plaintiff’s husband with another woman with a statement that the couple
were engaged to be married. The English Court of Appeal held that although
the plaintiff was not expressly referred to in the paper, and was unknown to
the defendant, the publication was referable to the plaintiff. To those who
knew the plaintiff and knew her to live with the man in the photograph, the
defamatory imputation was that she was not married to him and was, instead,
his mistress.

22.72 It is possible to look to other publications to establish the identity of

the plaintiff. In Fairfax Media Publications Pty Ltd v Pedavoli (2015) 326 ALR
737 at [144]–[146], the court examined the principles in Baltinos v Foreign
Language Publications Pty Ltd (1986) 6 NSWLR 85 at 98, and noted:
Where a plaintiff is not identified in the matter complained of as being
 defamatory, regard may be had to the naming of the plaintiff in a
subsequent publication by the same defendant.
Where the plaintiff is not identified, but the publication includes an
invitation that may be interpreted by the ordinary reasonable reader as
inviting the reader to ascertain the identity of the person to whom the
defendant intended to refer from the subsequent publication by
another party, the subsequent publication may be relied upon.
See also Hayward v Thompson [1982] 1 QB 47 at 60; Strasberg v Westfield
Ltd [2002] NSWSC 689 (internal letter referring to a television program to be
aired that would identify the plaintiff had a sufficient nexus to enable it to be
within the Baltinos principle).

22.73 Where a statement defames the owner of a named business, without

naming him or her, and the imputation is likely to injure the business, it is
enough to prove that the person was the owner without proving that persons
who read the report knew the plaintiff was the owner: Sungravure Pty Ltd v
Middle East Airlines Airliban SAL (1975) 134 CLR 1; Mirror Newspapers Ltd v
World Hosts Pty Ltd (1979) 141 CLR 632; 23 ALR 167; Channel Seven Sydney
Pty Ltd v Parras (2002) Aust Torts Reports ¶81-675.

[page 565]

Groups
22.74 If a defamatory imputation is related to a group of individuals, the
group as a whole is, generally, not able to sue for defamation. However,
individual members of a class may have a cause of action if it can be
established that the matter is reasonably referable to them: Godhard v James
Inglis & Co Ltd (1904) 2 CLR 78. In Knupffer v London Express Newspaper Ltd
[1944] AC 116 at 122, Lord Atkin stated:
The reason why a libel published of a large or indeterminate number of persons described by
 some general name generally fails to be actionable is the difficulty of establishing that the
plaintiff was, in fact, included in the defamatory statement, for the habit of making unfounded
generalizations is ingrained in ill-educated or vulgar minds, or the words are occasionally
intended to be a facetious exaggeration.

Lord Porter commented (at 124):

… the size of the class, the generality of the charge and the extravagance of the accusation may
all be elements to be taken into consideration, but none of them is conclusive.

An example of the application of the test whether a sensible person, having

knowledge of the relevant circumstances and reading casually, would
reasonably identify the plaintiffs as the persons defamed is Bjelke-Petersen v
Warburton [1987] 2 Qd R 465. In that case, the then premier of Queensland
and all the members of his cabinet sued the deputy leader of the opposition in
respect of general comments of ‘this government’s corruption’ and allegations
‘ministers have their hands in the till’. As Kneipp J stated (at 467):
He refers to “these blokes”, the use of “these” suggesting an antecedent, which must be the
Government. He then goes on to refer to “Ministers”. Plainly the view can reasonably be taken
that “Government” and “blokes” and “Ministers” all mean the same thing, and that the
allegation of corruption is thus reasonably referable to a class consisting of the Ministers. I think
that this class is sufficiently narrow for each member of the class to complain that the words
complained of may reasonably be taken to refer to him or her.

In Mann v Medicine Group Pty Ltd (1991) 105 FLR 419 (affirmed in (1992)
30 FCR 400), the court held that the allegation of defamation of bulk-billing
doctors in Australia failed as it could not be proven that a reasonable person
would associate the statements with a particular member of the class. In
contrast, in Lloyd v David Syme & Co Ltd [1986] AC 350; (1985) 60 ALJR 10,
the Privy Council held that, although the plaintiff was not specifically referred
to, the article was capable of being understood as referring specifically to the
captain of the cricket team. See also Rowan v Cornwall (No 5) (2002) 82 SASR
152 at [480], where it was noted:
… the size of the class is usually a relevant, if not conclusive, factor: David Syme & Co v
Canavan [(1918) 25 CLR 234]; and Knupffer v London Express Newspaper Ltd [[1944] AC 116].
In addition, much will depend on the precise nature of the statement: Mann v The Medicine
Group Pty Ltd (1992) 38 FCR 400 per Wilcox J at 403. Thus, its generality or its particularity, as
the case may be, will be relevant. As a matter of practical reality, a plaintiff is more likely to
 succeed if a member of a small group and more likely to fail if a member of a large group. In
other words, a plaintiff may succeed in proving that she is the person identified if the group
referred to in the defamatory statement is so small that it can reasonably be understood to refer
to any one of its members.

[page 566]

See also Christiansen v Fairfax Media Publications Pty Ltd [2012] NSWSC
1258 at [32], where failing to identify the managers of a casino who had been
dismissed was ‘clearly capable of casting a cloud of suspicion over each of
them’.
In Ballina Shire Council v Ringland (1994) 33 NSWLR 680, it was held that
an elected local council is unable to sue in defamation. This was based on the
reasoning that a democratically elected body should not be able to preclude
criticism of itself by relying on the law of defamation: at 690–1 per Gleeson
CJ. An individual member of that council will be able to sue in defamation if
able to establish that their own reputation has been damaged and that they
can be sufficiently identified.

Publication
22.75 It is only upon publication of the defamatory matter that the tort of
defamation arises: Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; 194
ALR 433. ‘Publication’ refers to the communication of the defamatory
material to a third party. Therefore, articles in newspapers and magazines,
broadcasts on television and radio, datacasts, scenes depicted in film or on the
stage are all publications. Spoken words, letters, postcards, posters, signs and
gestures are all forms of publication.
There is no defamation unless the matter is published to a third party;
otherwise there would be no injury to reputation. Publication to a single
individual, other than the party defamed, is sufficient: Pullman v Walter Hill
& Co Ltd [1891] 1 QB 524; Dow Jones & Co Inc v Gutnick (2002) 210 CLR
575; 194 ALR 433 at [124].

22.76 As with any general rule, however, there are exceptions. Publication
by one spouse to another does not ground an action because of the original
common law principle of the single identity of married persons: Wennhak v
Morgan (1888) 20 QBD 635. This does not apply to one spouse defaming the
other spouse if it is in the presence of a third party: Family Law Act 1975
(Cth) s 119 (parties to a marriage may bring proceedings in tort against each
other).
Also, there is no publication if an unauthorised person intercepts
defamatory matter addressed to the plaintiff: Huth v Huth [1915] 3 KB 32;
Powell v Gelston [1916] 2 KB 615. If the plaintiff is a company, there will be
no publication if the defamatory material is only received by someone on
behalf of the company in the ordinary course of business. As a company can
only act through natural persons, there would be no publication to a third
party in those circumstances: State Bank of New South Wales Ltd v
Currabubula Holdings Pty Ltd (2001) 51 NSWLR 399.

22.77 Generally, it is necessary that the person to whom the matter was
published comprehended it and understood that it referred to the plaintiff for
there to be publication: Kruse v Lindner (1978) 19 ALR 85. Therefore, there is
no publication to persons if they have no knowledge of special facts necessary
to comprehend the matter as defamatory: Cross v Denley (1952) 52 SR (NSW)
112. If the defamatory meaning arises from true innuendo, the plaintiff must
prove that there was publication to persons with knowledge of the extrinsic
facts. There is no publication until it has been communicated to at least one
person who has knowledge of the extrinsic facts that makes the matter
defamatory.

[page 567]
22.78 In addition to the traditional understanding of what constitutes
publication, material on the internet, in emails, on computer bulletin boards
and on discussion group forums are all publications. In Dow Jones & Co Inc v
Gutnick (2002) 210 CLR 575; 194 ALR 433 at [44], the High Court held that
there was publication upon the downloading of material from the internet as
that is when the material becomes comprehensible. It is not enough to simply
establish that the matter was posted on a website. However, a search engine
may not be a republisher of defamatory matter until it has notice of the
matter: see Bleyer v Google Inc (2014) 88 NSWLR 670; 311 ALR 529. The issue
of whether a search engine is a publisher depends upon its participation in
the publication: see Duffy v Google Inc [2015] SASC 170.

Republication
22.79 Publication will occur each time the defamatory material is repeated
or communicated. For example, a broadcast on one television station that is
then broadcast by another station is republication, as is reading out loud
defamatory material or repeating another’s defamatory statement. Similarly,
retweeting a defamatory statement will be republication as would sharing a
post on Facebook.

22.80 As the action of defamation arises upon publication, a new cause of

action arises from each republication: Truth (NZ) Ltd v Holloway [1960] 1
WLR 997 at 1002. See 22.88 for liability for republication. See Duke of
Brunswick v Harmer (1849) 14 QB 185; 117 ER 75, where although the
defamatory newspaper article had been printed 18 years previously, and
therefore an action on defamation was statute barred, by selling a copy of that
paper 18 years later there was republication.

Parties to the Action

Living persons
22.81 Any living person may be defamed, but the action of defamation
does not survive the death of the plaintiff. The survival of actions legislation
(see Chapter 16) in all Australian jurisdictions, except Tasmania, expressly
excludes an action in defamation surviving the death of a plaintiff or
defendant: Civil Law (Wrongs) Act 2002 (ACT) s 15(2); Law Reform
(Miscellaneous Provisions) Act 1944 (NSW) s 2(2); Law Reform
(Miscellaneous Provisions) Act 1956 (NT) s 5(2); Succession Act 1981 (Qld) s
66(2); Survival of Causes of Action Act 1940 (SA) s 2(2); Administration and
Probate Act 1958 (Vic) s 29(2); Law Reform (Miscellaneous Provisions) Act
1941 (WA) s 4(2). Despite this, the defamation legislation also provides:
A person (including a personal representative of a deceased person) cannot assert, continue or
enforce a cause of action for defamation in relation to —
(a) the publication of defamatory matter about a deceased person (whether published before or
after his or her death); or
(b) the publication of defamatory matter by a person who has died since publishing the matter.

[page 568]

See Civil Law (Wrongs) Act 2002 (ACT) s 122; Defamation Act 2005
(NSW) s 10; Defamation Act 2006 (NT) s 9; Defamation Act 2005 (Qld) s 10;
Defamation Act 2005 (SA) s 10; Defamation Act 2005 (Vic) s 10; Defamation
Act 2005 (WA) s 10. There is no equivalent in the Tasmanian legislation.

22.82 However, a living person may sue for defamation of a dead person if
the published imputation against the dead person carries with it a defamatory
imputation against the living person: Livingstone-Thomas v Associated
Newspapers Ltd [1969] 1 NSWR 771; Krahe v TCN Channel Nine Pty Ltd
(1986) 4 NSWLR 536 at 541.

Corporations and partnerships

22.83 A corporation has a separate legal identity and may protect its
reputation by resort to the civil law of defamation, just as much as a private
individual: R v Macnamara (1893) 14 LR (NSW) 515. Under the common
law, trading corporations could maintain an action in defamation for
statements which adversely affected their trading or business reputation. But
the remedy was limited — damages could only be recovered for the actual or
likely financial loss; no damages were awarded for non-economic loss for loss
of reputation. In Lewis v Daily Telegraph Ltd [1964] AC 234 at 262, Lord Reid
noted, ‘A company cannot be injured in its feelings, it can only be injured in
its pocket’.

22.84 The defamation legislation restricts the right of corporations to

pursue an action in defamation. The legislation only allows ‘excluded
corporations’ to sue in defamation. The term ‘excluded corporations’ is
defined as a corporation with objects that do not include financial gain for its
members or employs less than 10 persons and is not related to another
corporation: Civil Law (Wrongs) Act 2002 (ACT) s 121; Defamation Act 2005
(NSW) s 9; Defamation Act 2006 (NT) s 8; Defamation Act 2005 (Qld) s 9;
Defamation Act 2005 (SA) s 9; Defamation Act 2005 (Tas) s 9; Defamation
Act 2005 (Vic) s 9; Defamation Act 2005 (WA) s 9.

22.85 Subsection (4) of this provision refers to s 50 of the Corporations

Act 2001 (Cth), in relation to whether a corporation is related to another. The
subsection states that a subsidiary of a corporation (body corporate in the
Corporations Act 2001) is related to that corporation. A subsidiary is defined
in s 46 of the Corporations Act 2001 to include a corporation that holds more
than one-half of the issued share capital of the other corporation. For
example, in Heartcheck Australia Pty Ltd v Channel 7 Sydney Pty Ltd [2007]
NSWSC 555, the plaintiff had 100 shares issued and another corporation held
65 of those shares, depriving the plaintiff of an action under the Defamation
Act 2005 (NSW) as it was not an excluded corporation.

22.86 A partnership may bring an action in defamation if the defamatory

matter relates to the business of the partnership, not the reputation of the
individual of the partnership: Smith v McGuiggan (1863) 2 SCR (NSW) 268;
Electrical, Electronic, Telecommunication and Plumbing Union v Times
Newspapers Ltd [1980] QB 585.
In Todd v Swan Television and Radio Broadcasters Pty Ltd (2001) 25 WAR
284, the defendant aired a lead news story reporting that there had been a
murder and attempted suicide, showing a video of the plaintiffs’ business
premises, including its sign, and the

[page 569]

plaintiffs’ house which was situated behind the business premises. In fact, the
plaintiffs were not involved but the crime did take place at their home, and
people understood that the news item was reporting that Mr Todd had killed
his wife and then attempted suicide. The next year, the same footage was
aired again in a story about domestic violence. The plaintiffs’ business
suffered after the original news story. Damages were claimed for the injury to
the business, in the form of loss of profits, as well as damages for the injury to
the reputations of the plaintiffs and exemplary and aggravated damages. The
issue before the judge was whether the partnership could sue in defamation. It
was noted (at [76]) that:
… a partnership has a personality which is capable of being defamed and in respect of which it
can bring an action for libel: Coryton v Lithebye (1670) 2 Wm Saund (5th ed) 115; Cook v
Batchellor (1802) 3 Bos & Pul 151; Forster v Lawson (1826) 3 Bing 452; Le Fanu v Malcomson
(1848) 1 HLC 637; Metropolitan Saloon Omnibus Co Ltd v Hawkins (1859) 4 H & N 87; 157 ER
769 and Electrical, Electronic, Telecommunication and Plumbing Union v Times Newspapers Ltd
[1977] 1 QB 585 at 595. However the partners cannot sue jointly in respect of a defamation
causing injury to an individual member of the firm.

Steytler J held (at [96]) that there was no defamation action in respect of
the partnership:
Here the imputations undoubtedly injured the partnership in the way of its trade, but they did
not involve any reflection on the “character” of the partnership itself or “upon the mode in
 which its business was carried on” (see Griffiths v Benn (1911) 27 TLR 346, at 350, per Cozens-
Hardy MR). I am unable to accept that, to say of a business that it is owned by a man who has
murdered his wife and attempted suicide in the course of a domestic argument, is to say
anything of the partnership which, in truth, owns that business. Rather, what was said was
capable of reflecting only upon the character of Mr Todd himself, albeit he has, somewhat
inaccurately, been identified as “the owner” of the business. That it was Mr Todd who was
identified as the owner of the business is, as I have earlier said, not in doubt.

22.87 As with defamation of corporations under the common law,

damages may be awarded for the injury to the business of the partnership, not
any injury to the partners themselves: South Hetton Coal Co Ltd v North-
Eastern News Association Ltd [1894] 1 QB 133.

Republishers
22.88 Any person who publishes the defamatory material may be liable,
even if they were not the author of the material. A person who republishes
defamatory matter becomes a new publisher of it and a fresh cause of action is
grounded: Truth (NZ) Ltd v Holloway [1960] 1 WLR 997 at 1002; Hepburn v
TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682. Liability for republication
does not depend upon the defamatory material being adopted or reaffirmed;
the mere repetition of the material will impose liability: John Fairfax
Publications Pty Ltd v Obeid (2005) 64 NSWLR 485.

22.89 A person in control of property or the means of publication, who

permits another to publish defamatory material, may become a publisher
themselves. In Byrne v Deane [1937] 2 All ER 204, the proprietors and
directors of the golf club were sued for permitting an anonymous member to
publish a defamatory verse concerning the plaintiff implying

[page 570]

that he had reported the use of illegal gaming machines to the police. As
Greer LJ stated (at 207):
 In my judgment, the two proprietors of this establishment, by allowing the defamatory
statement, if it be defamatory, to rest upon their wall, and by not removing it, with the
knowledge that they must have had that, by not removing it, it would be read by people to
whom it would convey such meaning as it had, were taking part in the publication of it.

See also Urbanchich v Drummoyne Municipal Council (1991) Aust Torts

Reports ¶81-127.

22.90 Republication requires some form of control over the defamatory

material, which may be more difficult to prove when the alleged defamatory
material is not in written form. In Bishop v New South Wales [2000] NSWSC
1042, the plaintiff alleged that he had been defamed in a skit performed by
grade 12 students of the school at which he was a teacher. The issue before the
court was whether the school could be held liable for the skit. Dunford J held
(at [21]) that for the school to be involved in the defamation, the plaintiff had
to establish that:
… at some stage the headmaster became aware of the acts and gestures which conveyed the
imputations alleged. Because of the transient nature of the performance, there is no room for the
requirement of a complaint or request for removal … The plaintiff must show the headmaster
had the opportunity and ability to terminate the performance and must show that he failed to do
so. Because of the transient nature of the performance there is no question of a reasonable time
to stop it, but it must be shown that he had the ability and opportunity to terminate it before its
natural conclusion.

22.91 Technically, a service provider which allows defamatory material to

be posted on its internet site and leaves it there, is republishing the material.
However, cl 91 of Sch 5 of the Broadcasting Services Act 1992 (Cth) provides
that internet content hosts and internet service providers are not liable, under
any law of any state or territory that may impose liability for content, where
the host or service provider was not aware of its nature. See also 23.78.

22.92 In Duffy v Google Inc [2015] SASC 170, it was held that the
defendant, an internet search engine, was liable for the publication of
defamatory material that was listed in the results when the plaintiff’s name
was entered as a search term. The plaintiff has made numerous requests of the
defendant that the material be removed. Blue J of the South Australian
Supreme Court held that when the search engine auto-completed searches, by
adding ‘psychic stalker’, it either published, republished or directed users
towards the defamatory material. Blue J stated (at [204]):
Google was the sole operator and controller of the Google website. The paragraphs resided on
Google’s website. The paragraphs were communicated by Google to the user conducting a
search. Google played a critical role in communicating the paragraphs to the user. The physical
element of publication is present. Google did not play the passive role of a mere conduit such as
an internet service provider who merely provides access to the internet or a telecommunications
carrier who merely provides access to the telephone network. Google played an active role in
generating the paragraphs and communicating them to the user. The mere fact that the words
are programmed to be generated because they appear on third party webpages makes no
difference to the physical element. It makes no difference to the physical element whether a

[page 571]

person directly composes the words in question or programs a machine which does so as a
result of the program.

22.93 Certain defences were available at common law to republishers who

were innocent publishers if it could be shown that there was no knowledge of
the defamatory matter, nor any negligence in failing to recognise it in the
publication: Martin v Trustees of the British Museum (1894) 10 TLR 338;
Vizetelly v Mudie’s Select Library Ltd [1900] 2 QB 170.
The defamation legislation now provides the defence of innocent
dissemination: Civil Law (Wrongs) Act 2002 (ACT) s 139C; Defamation Act
2005 (NSW) s 32; Defamation Act 2006 (NT) s 29; Defamation Act 2005
(Qld) s 32; Defamation Act 2005 (SA) s 30; Defamation Act 2005 (Tas) s 32;
Defamation Act 2005 (Vic) s 32; Defamation Act 2005 (WA) s 32. The section
provides a defence for persons who are subordinate distributors. Subsection
(3)(f)(ii) states that a subordinate distributor includes a provider of services
consisting of ‘operation of, or the provision of, any equipment, system or
service, by means of which the matter is retrieved, copied, distributed or
made available in electronic form’.
As to defences to defamation, see Chapter 23.

Limitation Period
22.94 Prior to the defamation legislation, the limitation period for
defamation varied among the Australian jurisdictions from six months from
date of publication, to six years. The defamation legislation has amended the
limitation legislation, so that in all states and territories the limitation period
is one year from the date of publication with a possible extension of up to
three years: Limitation Act 1985 (ACT) s 21B; Limitation Act 1969 (NSW) ss
14B and 56A; Limitation Act 1981 (NT) ss 12(2)(b) and 44A; Limitation of
Actions Act 1974 (Qld) ss 10AA and 32A; Limitation of Actions Act 1936
(SA) s 37; Defamation Act 2005 (Tas) s 20A; Limitation of Actions Act 1958
(Vic) ss 5(1AAA) and 23B; Limitation Act 2005 (WA) ss 15 and 40.

6 Australian Consumer Law

22.95 It would be possible for a publication that is defamatory or amounts
to an injurious falsehood, to also be misleading or deceptive conduct in
breach of s 18 of the Australian Consumer Law (previously s 52 of the Trade
Practices Act 1974 (Cth)).
Section 18 of the Australian Consumer Law (Competition and Consumer
Act 2010 (Cth) Sch 2) states:
A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or
is likely to mislead or deceive.

As a law of the Commonwealth, for s 18 to apply the defendant must be a

corporation engaged in trade or commerce; as a state or territory law, s 18
applies to natural persons engaged in trade or commerce.
22.96 However, the Australian Consumer Law as a Commonwealth law
will apply to unincorporated individuals, when using postal, telegraphic or
telephonic services or radio or television broadcasts: Competition and
Consumer Act 2010 (Cth) s 6(3). Therefore,

[page 572]

a natural person publishing matter on the internet would be caught by the

Australian Consumer Law as a Commonwealth law or as a law of the state or
territory, as long as they were engaged in trade or commerce: Australian
Competition and Consumer Commission v Chen (2003) 201 ALR 40. In
Dataflow Computer Services Pty Ltd v Goodman (1999) 168 ALR 169, it was
held that the sending of an email by an individual, pointing out transactions
between the plaintiff and another business, was not done in trade or
commerce. It was stated (at [23]) that:
[The plaintiff’s] conduct is more appropriately characterised as that of a bystander commenting
on the trade or commerce in which others are engaged, rather than something done in that, or
any other, trade or commerce.

In Madden v Seafolly Pty Ltd (2014) 313 ALR 1, the appellant, the principal
of Whitesands, a competitor of the respondent, claimed that the respondent
had ‘ripped off’ her designs. The appellant also posted comments on her
personal Facebook page. The court held that these postings were in trade or
commerce as the appellant was the principal of the business and her
statements related to the way in which the respondent conducted its business:
at [97]–[98]. See also Fletcher v Nextra Australia Pty Ltd [2015] FCAFC 52.

Defamation
22.97 The main advantage of bringing an action under the Australian
Consumer Law as opposed to an action in defamation, is that the many
defences to defamation would not be available. To overcome this strategic
preference, the legislation exempts certain persons from the application of s
18.
Section 19 of the Australian Consumer Law provides that s 18 does not
apply to ‘information providers’. Section 19(4) and (5) clarify that an
‘information provider’ is a person who carries on the business of providing
information, and, for example, includes licence holders under the
Broadcasting Services Act 1992 (Cth) and the Australian Broadcasting
Corporation.

22.98 However, s 18 will apply if the information published is an

advertisement or connected with the supply of goods and services of the kind
supplied by the information provider: s 19(2) and (3). See, for example,
Australian Competition and Consumer Commission v Channel Seven Brisbane
Pty Ltd (2009) 239 CLR 305; 255 ALR 1 (Commission alleged that the
broadcast of two episodes of the ‘Today Tonight’ program were misleading or
deceptive about the benefits of a mentoring program and was not within the
exemption).

22.99 In Gianni Versace SpA v Monte (2002) 119 FCR 349 at [45], the
High Court held that it was no defence to an allegation of misleading or
deceptive conduct that the law of defamation covers the field. In that case, the
respondent wrote what was claimed to be an autobiography, in which he
claimed a long association with the appellants and gave details of
conversations and written communications that reflected badly upon them.
The appellants sued for breach of s 52 of the Trade Practices Act 1974 (Cth)
(equivalent to s 18 of the Australian Consumer Law) as well as in defamation.
The court held that the equivalent to s 19 of the Australian Consumer Law (s
65A of the Trade Practices Act 1974 (Cth)) did not apply to provide the
respondent with any protection because he was not an ‘information provider’
as required by the provision:
 [page 573]

Not all writers or publishers are in the business of providing “information”, and Monte himself
acknowledged that his book uses “poetic licence”. Moreover, his reported description of the
book as “a fast moving, fictionalised-type film” undermines any submission that the intent was
for the provision of information, although he was reported as indicating that this description did
not mean that the contents of the book were not true: at [131].

It was held that the book was in trade or commerce as it had been written
for commercial gain by the respondent.
In Nixon v Slater & Gordon (2000) 175 ALR 15, a photograph of the
plaintiffs, two surgeons, appeared on the cover of a medical malpractice
booklet published by the defendant, a firm of solicitors. The plaintiffs sued in
defamation and for misleading or deceptive conduct, alleging that the
defendant had imputed that the plaintiffs were the subject of medical
malpractice claims or that they had agreed, for reward, to their professional
repute being used by the defendant to promote litigation of such claims. The
Federal Court held that the publication and distribution of the booklet was in
trade and commerce and that the imputations alleged by the plaintiffs were
reasonable in the circumstances. The defendant was held to have engaged in
misleading or deceptive conduct and to be liable in defamation.

Further Reading
R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis
Butterworths, Sydney, 2013, Chs 17 and 18.
P George, Defamation Law in Australia, 2nd ed, LexisNexis
Butterworths, Sydney, 2012.
D Mahoney, ‘Defamation Law — A Time to Rethink’ in N J Mullany
(ed), Torts in the Nineties, LBC Information Services, Sydney, 1997.
1. T F T Plucknett, A Concise History of the Common Law, 5th ed, Butterworth & Co Ltd, London,
1956, p 482.
2. Citing J Gatley, Libel and Slander, 10th ed, Sweet & Maxwell, London, 2004, [3.26].
[page 575]
 Chapter 23

Defences and Remedies in

Defamation

1 Introduction
23.1 In Eatock v Bolt (2011) 197 FCR 261; 283 ALR 505 at [238], it was
noted:
The right of freedom of expression at common law is, by definition, qualified by those
exceptions otherwise provided by law. The law of defamation imposes significant limitations on
freedom of expression. Other laws imposing limitations include laws dealing with blasphemy,
contempt of court and of Parliament, confidential information, the torts of negligent
misstatement, deceit and injurious falsehood. Further, a wide range of legislative provisions
dealing with obscenity, public order, copyright, censorship and consumer protection place
restrictions on the exercise of the right to freedom of expression. These laws recognise that there
are legitimate countervailing interests which require the imposition of limitations upon freedom
of expression.

The action of defamation seeks to keep a balance between the right of an

individual to protect his or her reputation and the right of freedom of speech:
Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104. This balance
is achieved through a complex set of defences that seeks to protect the right of
publication, where reasonable, in the public interest.
If no successful defence is raised by the defendant, the plaintiff is entitled to
damages to compensate them for the injury to their reputation and other
economic loss. In addition to damages, if it is appropriate, an injunction to
prevent either the publication or the republication of the defamatory matter
may be ordered by the court.
 2 Defences
23.2 With the introduction of the national defamation laws, defences
contained in the Defamation Acts are in addition to the defences available
under the common law: Civil Law (Wrongs) Act 2002 (ACT) s 134(1);
Defamation Act 2005 (NSW) s 24(1); Defamation Act 2006 (NT) s 21(1);
Defamation Act 2005 (Qld) s 24(1); Defamation Act 2005 (SA) s 22(1);
Defamation Act 2005 (Tas) s 24(1); Defamation Act 2005 (Vic) s 24(1);
Defamation Act 2005 (WA) s 24(1).
Therefore, the defences contained in the Acts coexist with the defences at
common law.

23.3 A defendant may plead alternate and inconsistent defences: Casey v

Australian Broadcasting Commission [1981] 1 NSWLR 305.

[page 576]

Justification (Truth)
23.4 Truth is a complete defence at common law and under the legislation.
In Rofe v Smith’s Newspapers Ltd (1924) 25 SR (NSW) 4 at 21, it was
explained that there is the presumption that telling the truth about a person
cannot injure their reputation.
The belief of the defendant that the material is true, even if there are
reasonable grounds to do so, is irrelevant to the defence: E Hulton & Co v
Jones [1910] AC 20 at 23–4.

Common law
23.5 For the defence of truth at common law to succeed, the matter
complained of must be true, both in substance and effect: Howden v ‘Truth’ &
‘Sportsman’ Ltd (1937) 58 CLR 416; [1938] ALR 208. Therefore, the defendant
must prove that not only is the literal meaning of the defamatory imputation
true but also any inference that a reasonable person may draw from the
matter: Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; Channel Seven
Sydney Pty Ltd v Mahommed (2010) 278 ALR 232. In Harbour Radio Pty Ltd
v Trad (2012) 247 CLR 31; 292 ALR 192, it was held that the correct test for
truth was the general community standard, not that of a right-thinking
person.

23.6 For the defence to succeed, the imputation must be accurate in all
except the most minor of details. Any inaccuracy cannot alter or aggravate
the imputation: Rofe v Smith’s Newspapers Ltd (1924) 25 SR (NSW) 4 at 22;
Alexander v North Eastern Railway Co (1865) 6 B & S 340; 122 ER 1221.

Legislation
23.7 The legislation provides:
It is a defence to the publication of defamatory matter if the defendant proves that the
defamatory imputations carried by the matter of which the plaintiff complains are substantially
true.

See Civil Law (Wrongs) Act 2002 (ACT) s 135; Defamation Act 2005
(NSW) s 25; Defamation Act 2006 (NT) s 22; Defamation Act 2005 (Qld) s
25; Defamation Act 2005 (SA) s 23; Defamation Act 2005 (Tas) s 25;
Defamation Act 2005 (Vic) s 25; Defamation Act 2005 (WA) s 25.

23.8 The statutory defences adopt the common law position that the
imputation must be accurate. To be ‘substantially true’, the imputations must
be ‘true in substance or not materially different from the truth’: Civil Law
(Wrongs) Act 2002 (ACT) s 116; Defamation Act 2005 (NSW) s 4;
Defamation Act 2006 (NT) s 3; Defamation Act 2005 (Qld) Sch 5;
Defamation Act 2005 (SA) s 4; Defamation Act 2005 (Tas) s 4; Defamation
Act 2005 (Vic) s 4; Defamation Act 2005 (WA) s 4 (referred to as the
‘definition provision’).
23.9 If the defamatory matter contains the imputation that the plaintiff is
guilty of an offence, the defamation legislation in all jurisdictions, except
South Australia, provides that a conviction of an offence in an Australian
court is evidence that the offence was committed: Civil Law (Wrongs) Act
2002 (ACT) s 139M; Defamation Act 2005 (NSW) s 42; Defamation Act 2006
(NT) s 39; Defamation Act 2005 (Qld) s 42; Defamation Act 2005 (Tas) s 42;
Defamation Act 2005 (Vic) s 42; Defamation Act 2005 (WA) s 42. This is
different

[page 577]

from the common law position which does not regard a conviction as
evidence that an imputation of guilt is true.

23.10 As it is permissible to plead multiple imputations as arising from the

defamatory matter, to succeed with the defence of truth, the truth of each
imputation must be established. This is because the defamation legislation
provides that regardless of how many imputations are pleaded by the
plaintiff, only one action in defamation arises: see 22.48.

Contextual Truth
23.11 The defence of contextual truth covers the situation where the
defamatory matter conveys multiple imputations and the plaintiff chooses
specific imputations only. The defence allows the defendant to raise the other
possible imputations and prove their truth. The defence of contextual truth
existed prior to the national defamation laws in New South Wales and
Tasmania: Defamation Act 1974 (NSW) s 16 (repealed); Defamation Act 1957
(Tas) s 18 (repealed).

23.12 The defamation legislation provides the defence of contextual truth:

Civil Law (Wrongs) Act 2002 (ACT) s 136; Defamation Act 2005 (NSW) s 26;
Defamation Act 2006 (NT) s 23; Defamation Act 2005 (Qld) s 26; Defamation
Act 2005 (SA) s 24; Defamation Act 2005 (Tas) s 26; Defamation Act 2005
(Vic) s 26; Defamation Act 2005 (WA) s 26.
The defamation legislation states:
It is a defence to the publication of defamatory matter if the defendant proves that —
(a) the matter carried, in addition to the defamatory imputations of which the plaintiff
complains, 1 or more other imputations (contextual imputations) that are substantially
true; and
(b) the defamatory imputations do not further harm the reputation of the plaintiff because of
the substantial truth of the contextual imputations.

23.13 The defence was explained in the following terms by Simpson J in

Fawcett v John Fairfax Publications Pty Ltd [2008] NSWSC 139 at [166]:
… when a defence of contextual truth is pleaded and reliance is placed upon imputations
pleaded by a plaintiff, the defence is anticipatory; it is an attempt to justify any imputations not
found to have been substantially true by reference to any imputations that have been found to be
substantially true, and to show that, by reason of the truth of those in the latter category, those
in the former category have not caused any additional injury to the plaintiff’s reputation.

23.14 An example of the defence is found in John Fairfax Publications Pty

Ltd v Zunter [2006] NSWCA 227, where the appellant raised the defence of
contextual truth in s 16 of the now repealed Defamation Act 1974 (NSW).
The defendant had published an article in a newspaper that reported that the
respondent had carried out an illegal backburn when the caravan site he
managed was under threat from a bushfire. The jury found that the article
carried two defamatory imputations of the respondent: first, that he had lost
control of his backburn and, second, that he had interfered with the main
strategy of the Fire Control Officer. The appellant argued two contextual
imputations: first, that the respondent had carried out an illegal backburn
and, second, that the backburn was carried out in

[page 578]
circumstances of extreme fire danger. In considering the defence of
contextual truth, it was stated (at [38]–[40]):
The facts which establish that the [respondent] lit an illegal backburn in circumstances of
extreme fire danger are part of the context in which the impact of each of the [respondent’s]
imputations must be assessed. The [appellant’s] imputations focus on the [respondent’s]
conduct whereas the [respondent’s] imputations focus on that conduct and its consequences.
Both deal with a backburn that had been lit by the [respondent], that was illegal, and had been lit
in circumstances of extreme fire danger.

The [respondent’s] first imputation contains the additional allegation that he lost control of that
backburn. In my judgment this meant that the [respondent] had been reckless, incompetent, or
both in lighting and controlling his illegal backburn and this additional allegation must have
further injured his reputation.

The second imputation contains the additional allegation that as a result of him losing control of
his backburn the main strategy of the Shoalhaven Fire Control Officer was wrecked and of
course this necessarily involved increased risks to the lives and property of others. This
additional allegation in the second imputation must have further injured the reputation of the
[respondent]. The appellant’s challenge to this part of the Judge’s decision therefore fails.

23.15 The defence only applies to imputations that have not been pleaded
by the plaintiff, that is, the defendant may not ‘plead back’: Besser v Kermode
(2011) 282 ALR 314. Therefore, the contextual imputations pleaded by the
defendant must be different to the imputations pleaded by the plaintiff: John
Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484.

Absolute Privilege
23.16 It is recognised that, in certain circumstances, the right to freedom
of speech needs to be protected even though it may cause damage to a
person’s reputation. Such occasions include parliamentary proceedings,
judicial proceedings and communications between officers of state, where
absolute privilege protects the speaker from an action in defamation. The
defence applies only to certain publications and the intention of the publisher
is irrelevant.

23.17 The common law and various legislation, including the defamation
legislation, provide the defence of absolute privilege in specific circumstances.
The defamation legislation states that it is a ‘defence to the publication of
defamatory matter if the defendant proves that it was published on an
occasion of absolute privilege’: Civil Law (Wrongs) Act 2002 (ACT) s 137(1);
Defamation Act 2005 (NSW) s 27(1); Defamation Act 2006 (NT) s 24(1);
Defamation Act 2005 (Qld) s 27(1); Defamation Act 2005 (SA) s 25(1);
Defamation Act 2005 (Tas) s 27(1); Defamation Act 2005 (Vic) s 27(1);
Defamation Act 2005 (WA) s 27(1).

Parliamentary proceedings
23.18 Absolute privilege, in respect of parliamentary proceedings, is a
long-established defence and can be traced as far back as the Bill of Rights
1688 in which Art 9 stated ‘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’. In Holding v Jennings [1979] VR 289 at 291,
it was held:
The privilege of freedom of speech in Parliament has been repeatedly recognized and affirmed,
and it is clear law that no proceedings, either civil or criminal, may be taken against a member

[page 579]

of Parliament for anything said or done by him in Parliament, and a member is not examinable
outside Parliament concerning anything said by him in Parliament.

23.19 Both the common law and the defamation legislation allow the
defence of absolute privilege in respect of publications in the course of
proceedings of parliamentary bodies. Various legislation at federal and state
levels also allows the defence for specific publications related to such
proceedings.

23.20 Common law Under the common law, no statement made in

parliament may be the basis for an action in defamation. In Stockdale v
Hansard (1839) 9 Ad & E 1 at 114; 112 ER 1112 at 1156, it was stated:
… whatever is done within the walls of either assembly must pass without question in any other
place. For speeches made in Parliament by a member to the prejudice of any other person, or
hazardous to the public peace, that member enjoys complete impunity.

The privilege is attached to the parliamentary proceedings, not the speaker,

nor the subject. Therefore, if a member of parliament makes a defamatory
statement during proceedings and then repeats it outside parliament, the
repetition is not protected: R v Lord Abingdon (1794) 170 ER 337; R v Creevey
(1813) 105 ER 102; Australian Broadcasting Corporation v Chatterton (1986)
46 SASR 1; Beitzel v Crabb [1992] 2 VR 121.
The defence extends to documents produced in the preparation of a debate
or a speech for parliament (Holding v Jennings [1979] VR 289) and statements
by witnesses before a committee of parliament: see Goffin v Donnelly (1881) 6
QBD 307. Reports and proceedings published under the authority of the
parliament are also protected.

23.21 Defamation legislation In respect of parliamentary proceedings,

the relevant provision states:
(2) Without limiting subsection (1), matter is published on an occasion of absolute privilege if
—
(a) the matter is published in the course of the proceedings of a parliamentary body,
including (but not limited to) —
(i) the publication of a document by order, or under the authority, of the body; and
(ii) the publication of the debates and proceedings of the body by or under the
authority of the body or any law; and
(iii) the publication of matter while giving evidence before the body; and
(iv) the publication of matter while presenting or submitting a document to the body;
…

See Civil Law (Wrongs) Act 2002 (ACT) s 137(2)(a); Defamation Act 2005
(NSW) s 27(2)(a); Defamation Act 2006 (NT) s 24(2)(a); Defamation Act
2005 (Qld) s 27(2)(a); Defamation Act 2005 (SA) s 25(2)(a); Defamation Act
2005 (Tas) s 27(2)(a); Defamation Act 2005 (Vic) s 27(2)(a); Defamation Act
2005 (WA) s 27(2)(a).

23.22 ‘Parliamentary body’ is defined in the definition provision (see 23.8)

of the legislation as:
(a) a parliament or legislature of any country; or
(b) a house of a parliament or legislature of any country; or

[page 580]

(c) a committee of a parliament or legislature of any country; or

(d) a committee of a house or houses of a parliament or legislature of any country.

23.23 Other legislation Absolute privilege is also provided for by various

statutes that were enacted prior to the defamation legislation and, therefore,
cover many of the same circumstances. For example, the authorised
publication of material presented to the Federal Parliament or a committee of
the parliament is protected, as is the publication of the proceedings, debates
and reports of the parliament (Parliamentary Papers Act 1907 (Cth) ss 2–4)
and the broadcasting of parliamentary proceedings: Parliamentary
Proceedings Broadcasting Act 1946 (Cth) s 15. Similar protection is provided
by state and territory legislation: Australian Capital Territory (Self-
Government) Act (Cth) 1988 s 24(3); Legislative Assembly (Powers and
Privileges) Act 1992 (NT) ss 4, 6; Constitution Act 1934 (SA) s 38;
Constitution Act 1975 (Vic) s 19(1); Parliamentary Privileges Act 1891 (WA)
s 1.
The Parliamentary Privileges Act 1987 (Cth) also provides the defence of
absolute privilege for a ‘fair and accurate report of proceedings’ of a federal
parliament or a committee: s 10. For the defence to apply, the publication
must be without any adoption of the substance matter by the defendant.
Publications may be in any form.
 There is also legislation that provides absolute privilege for specific bodies,
for example s 88(2) of the Hospital and Health Boards Act 2013 (Qld)
provides that a person who is or was a member of a quality assurance
committee has the defence of absolute privilege in a proceeding for
defamation.

Judicial proceedings
23.24 For justice to be properly administered, it requires judicial
proceedings to be completely protected from suits of defamation: Cabassi v
Vila (1940) 64 CLR 130; Munster v Lamb (1883) 11 QBD 588 at 604–5;
Watson v McEwan [1905] AC 480 at 486. The privilege applies to judges,
parties to the action, witnesses, legal practitioners and jurors. It applies to all
the steps involved in proceedings, for example initiating the proceedings,
pleadings, evidence given and the judgment. In Taylor v Director of the
Serious Fraud Office [1999] 2 AC 177, it was held by the House of Lords that a
letter written by a solicitor to a witness during proceedings attracted absolute
privilege.

23.25 Common law At common law, the absolute privilege bestowed

upon judicial proceedings also applies in respect of proceedings of tribunals
and quasi-judicial bodies (Mann v O’Neill (1997) 191 CLR 204; 145 ALR 682),
for example professional disciplinary boards such as the Solicitors’ Board in
Hercules v Phease [1994] 2 VR 411. As Royal Commissions do not have
judicial functions, proceedings and reports do not attract the defence:
Douglass v Lewis (1982) 30 SASR 50; Hasselblad (GB) Ltd v Orbinson [1985]
QB 475.

23.26 Communications between a solicitor and client in relation to

judicial proceedings are also protected by absolute privilege: Watson v
McEwan [1905] AC 180. Publications that take place during ordinary
transactions, such as a conveyance transaction that is not litigated, are not
protected. However, due to legal professional privilege, communications
between a solicitor and client would be protected from being admissible as
evidence.

[page 581]

23.27 The defence of absolute privilege was considered by the High Court
in Mann v O’Neill (1997) 191 CLR 204; 145 ALR 682. The facts were that Dr
Mann had been the unsuccessful defendant in two matters heard in the Small
Claims Court of the Australian Capital Territory. On both occasions, the
magistrate hearing the matter was the plaintiff in the present action. Shortly
after judgment was entered against him in the second matter, Dr Mann wrote
to the Attorney-General of the Commonwealth and, later, to the Federal
Minister of Justice and the Chief Magistrate of the Australian Capital
Territory. In these letters, he questioned the plaintiff’s fitness to hold office
and his mental capacity to conduct cases as a magistrate.
The plaintiff sued in defamation and the defendant argued that the letters
were protected by absolute privilege because either they should be regarded as
a step in the proceedings of the Small Claims Court, or because they were the
necessary first step for the institution of proceedings to remove the magistrate
from office. The defence was upheld at first instance, but was struck out on
appeal in a 2:1 decision in the Federal Court. In the High Court, only
McHugh J would have allowed the appeal; the other six members of the bench
dismissed the appeal, although noting that, on the facts of the case, a defence
of qualified privilege may be available.
Commenting on the defence of absolute privilege, Brennan CJ, Dawson,
Toohey and Gaudron JJ stated (at CLR 213–14; ALR 686):
Whatever the position with respect to communications between the officers of States, absolute
privilege attaches to statements made in the course of parliamentary and judicial proceedings
for reasons of necessity. Thus, it has been said that absolute parliamentary privilege arises from
“inherent necessity”. And absolute privilege attaches to statements made in the course of judicial
proceedings because it is an indispensable attribute of the judicial process. It is necessary that
 persons involved in judicial proceedings, whether judge, jury, parties, witnesses or legal
representatives, be able to discharge their duties freely and without fear of civil action for
anything said by them in the course of proceedings. Were civil liability to attach or be capable of
attaching, it would impede inquiry as to the truth and justice of the matter and jeopardise the
“safe administration of justice”.

It may be that the various categories of absolute privilege are all properly to be seen as grounded
in necessity, and not on broader grounds of public policy. Whether or not that is so, the general
rule is that the extension of absolute privilege is “viewed with the most jealous suspicion, and
resisted, unless its necessity is demonstrated”. Certainly, absolute privilege should not be
extended to statements which are said to be analogous to statements in judicial proceedings
unless there is demonstrated some necessity of the kind that dictates that judicial proceedings
are absolutely privileged. And it is that consideration that leads to the rejection of the argument
that absolute privilege attaches to the letter to the Attorney-General because it is analogous to a
notice of appeal.

23.28 See also Cunliffe v Woods [2012] VSC 254 (letter from defendant,
stating that statements in the plaintiff’s affidavit were unlikely to be true, was
incidental to proceedings). In regard to the quasi-judicial proceedings of
professional disciplinary bodies, such as law societies, their Honours in Mann
v O’Neill (1997) 191 CLR 204; 145 ALR 682 commented (at CLR 214–15; ALR
687–8):
So far as absolute privilege is claimed on the basis that Dr Mann’s letters were “necessary first
steps for the institution of proceedings for the removal of [the magistrate, Mr O’Neill]”,

[page 582]

there are cases which support the view that disciplinary proceedings or, more accurately, the
proceedings of some disciplinary tribunals are quasi-judicial. Thus, for example, it was held in
Addis v Crocker [[1961] QB 11] that absolute privilege attached to the proceedings of the
disciplinary committee of the Law Society of England and Wales. More recently, it was accepted
in Hercules v Phease [[1994] 2 VR 411] that proceedings of the disciplinary committee of the
Law Institute of Victoria are absolutely privileged. So, too, it was accepted in Lincoln v Daniels
[[1962] 1 QB 237] that disciplinary inquiries by the Benchers of the Inns of Court are absolutely
privileged, notwithstanding that they are not authorised by statute and that their procedures
differ in material respects from those of a court.

…
 Many professions now have complaint procedures to ensure observance of professional
standards, with complaints leading to or, at least, having the potential to lead to disciplinary
proceedings. Often, the procedures provide for the complaint to be referred for investigation
and allow the person or body charged with investigation to determine whether or not
disciplinary proceedings will result. Assuming for present purposes that such proceedings are
quasi-judicial, two questions arise. The first is whether a particular communication is a
complaint for the purpose of those proceedings, a question which arose in Telatax Consultants v
Williams [[1989] 1 NZLR 698]. The second is whether, given that disciplinary proceedings will
not automatically follow, the complaint is a step in those proceedings. That was the question in
Hercules v Phease.

Where, in Hercules v Phease, the complaint is part of an established procedure which must be set
in motion if it is to result in disciplinary proceedings, the complaint is properly regarded as a
step in those proceedings even if disciplinary proceedings will not necessarily eventuate. In that
situation, the complaint is “incidental [to the proceedings], and necessary for [them]”.
Accordingly, it is properly to be regarded as a necessary first step. But that is not the situation in
this case. [footnotes omitted]

23.29 Defamation legislation Judicial proceedings are also protected by

the defamation legislation, which states that there is absolute privilege when:
… the matter is published in the course of the proceedings of an Australian court or Australian
tribunal, including (but not limited to) —
(i) the publication of matter in any document filed or lodged with, or otherwise
submitted to, the court or tribunal (including any originating process); and
(ii) the publication of matter while giving evidence before the court or tribunal; and
(iii) the publication of matter in any judgment, order or other determination of the court
or tribunal.

See Civil Law (Wrongs) Act 2002 (ACT) s 137(2)(b); Defamation Act 2005
(NSW) s 27(2)(b); Defamation Act 2006 (NT) s 24(2)(b); Defamation Act
2005 (Qld) s 27(2)(b); Defamation Act 2005 (SA) s 25(2)(b); Defamation Act
2005 (Tas) s 27(2)(b); Defamation Act 2005 (Vic) s 27(2)(b); Defamation Act
2005 (WA) s 27(2)(b).

23.30 ‘Australian court’ is defined in the definition provision of the

legislation (see 23.8) as ‘any court established by or under a law of an
Australian jurisdiction (including a court conducting committal proceedings
for an indictable offence)’. Unlike the common law, Royal Commissions are
given absolute privilege as the legislation defines ‘Australian tribunal’ as:

[page 583]

… any tribunal (other than a court) established by or under a law of an Australian jurisdiction
that has the power to take evidence from witnesses before it on oath or affirmation (including a
Royal Commission or other special commission of inquiry).

23.31 Other legislation As with parliamentary proceedings, legislation

was enacted to extend the defence of absolute privilege to areas connected
with judicial proceedings that were not covered by the common law. For
example, as proceedings of a Royal Commission were not protected by
absolute privilege at common law as they are investigatory in nature, not
judicial (see 23.25), legislation was enacted to extend privilege to such
investigatory bodies: for example, Royal Commissions Act 1902 (Cth) s 7.
However, as noted in 23.29, under the defamation legislation, the definition
of ‘Australian tribunal’ expressly includes a Royal Commission.

Communications between officers of state

23.32 Communications between officers of state in the course of official
duties are absolutely privileged under the common law: Chatterton v
Secretary of State for India [1895] 2 QB 189; M Isaacs & Sons Ltd v Cook
[1925] 2 KB 391. The defence is limited to communications between officers
of state and their subordinates for matters relating to their office. There is no
equivalent defence under the defamation legislation.

Qualified Privilege
23.33 The defence of qualified privilege covers a variety of situations, the
common theme being that there is a duty or interest to publish the
defamatory material and the recipient has a corresponding duty or interest to
receive it: Adam v Ward [1917] AC 309.
The policy behind the defence of qualified privilege is that the public have a
right to be informed of proceedings and, therefore, the reporters of those
proceedings should be protected. See Cush v Dillon (2011) 243 CLR 298; 279
ALR 631 at [12]; Aktas v Westpac Banking Corporation (2010) 241 CLR 79;
268 ALR 409 at [22]. In Roberts v Bass (2002) 212 CLR 1; 194 ALR 161 at [62],
Gaudron, McHugh and Gummow JJ stated:
The common law protects a defamatory statement made on an occasion where one person has a
duty or interest to make the statement and the recipient of the statement has a corresponding
duty or interest to receive it (Adam v Ward [1917] AC 309 at 334; [1916–17] All ER Rep 157 at
157 per Lord Atkinson). Communications made on such occasions are privileged because their
making promotes the welfare of society (Toogood v Spyring (1834) 1 CM & R 181 at 193; 149 ER
1044 at 1050 per Parke B). But the privilege is qualified — hence the name qualified privilege —
by the condition that the occasion must not be used for some purpose or motive foreign to the
duty or interest that protects the making of the statement.

See also Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31; 292 ALR 192.

Common law
23.34 Scrutton LJ in Watt v Longsdon [1930] 1 KB 130 at 147–8 explained
the occasions to which the defence of qualified privilege may apply as:
(1) a duty to communicate information believed to be true to a person who has a material
interest in receiving the information, or

[page 584]

(2) an interest in the speaker to be protected by communicating information, if true, relevant

to that interest, to a person honestly believed to have a duty to protect that interest, or
(3) a common interest in and reciprocal duty in respect of the subject matter of the
communication between speaker and recipient.

23.35 It is a question of law whether the occasion is privileged and a

question of fact whether the occasion was used for the purpose of the
privilege, that is, there was no malice in the part of the defendant: Bashford v
Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; 204 ALR 193
at [22].

23.36 As the privilege attaches to the occasion, it can be difficult to

determine whether in the circumstances the defence applies. Gleeson CJ,
Hayne and Heydon JJ stated in Bashford v Information Australia (Newsletters)
Pty Ltd (2004) 218 CLR 366; 204 ALR 193 at [9]–[10]:
The principles to be applied in determining whether the occasion of publication of matter about
which complaint is made was an occasion of qualified privilege are well known. The authorities
that state those principles are equally well known (Toogood v Spyring (1834) 1 Cr M & R 181;
149 ER 1044; Adam v Ward [1917] AC 309). Frequent reference is made to the statement of
Parke B in Toogood v Spyring ((1834) 1 Cr M & R 181 at 193; 149 ER 1044 at 1049–50):
In general, an action lies for the malicious publication of statements which are false in
fact, and injurious to the character of another (within the well-known limits as to verbal
slander), and the law considers such publication as malicious, 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. In such cases, the
occasion prevents the inference of malice, which the law draws from unauthorized
communications, and affords a qualified defence depending upon the absence of actual
malice. 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.

Reciprocity of duty or interest is essential (Adam v Ward [1917] AC 309 at 334).

These principles are stated at a very high level of abstraction and generality. “The difficulty lies
in applying the law to the circumstances of the particular case under consideration” (Macintosh
v Dun (1908) 6 CLR 303 at 305; [1908] AC 390 at 398 per Lord Macnaghten). Concepts which
are expressed as “public or private duty, whether legal or moral” (Toogood v Spyring (1834) 1 Cr
M & R 181 at 193; 149 ER 1044 at 1050 per Parke B) and “the common convenience and welfare
of society” (Toogood v Spyring (1834) 1 Cr M & R 181 at 193; 149 ER 1044 at 1050 per Parke B)
are evidently difficult of application. When it is recognised, as it must be, that “the
circumstances that constitute a privileged occasion can themselves never be catalogued and
rendered exact” (London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15 at
22 per Lord Buckmaster LC) it is clear that in order to apply the principles, a court must “make
a close scrutiny of the circumstances of the case, of the situation of the parties, of the relations of
all concerned and of the events leading up to and surrounding the publication” (Guise v Kouvelis
(1947) 74 CLR 102 at 116 per Dixon J).
 [page 585]

23.37 The categories of qualified privilege under the common law are not
closed, but there has been no expansion of the categories for many years. See
Marshall v Megna [2013] NSWCA 30.

23.38 When considering the defence of qualified privilege, it must be

asked, what legal, social or moral duties existed between the defendant as
publisher and the recipients; and was there reciprocity of duty or interest?

23.39 Duty or interest to publish A publication by a person under a legal,

social or moral duty to publish to a person having an interest in the
publication is protected: Cush v Dillon (2011) 243 CLR 298; 279 ALR 631;
Roberts v Bass (2002) 212 CLR 1; 194 ALR 161. The publication need not be
for the defendant’s own interest, but may be for the protection of others.
However, the duty or interest must exist as a belief by the defendant that they
have such a duty or interest will not be sufficient: Adam v Ward [1917] AC
309.

23.40 Reciprocity There must be reciprocity between the two parties:

Watt v Longsdon. Lord Campbell CJ in Harrison v Bush (1855) 5 E & B 344 at
348; 119 ER 509 at 512, stated:
A communication made bona fide upon any subject matter in which the party communicating
has an interest, or in reference to which he has a duty, is privileged, if made to a person having a
corresponding interest or duty, although it contain criminatory matter which, without this
privilege, would be slanderous and actionable.

In Adam v Ward [1917] AC 309 at 334, the requirement of reciprocity was

emphasised:
It was not disputed, in this case on either side, that a privileged occasion is, in reference to
qualified privilege, an occasion where the person who makes the 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. This reciprocity is
essential.
 It is a question for the judge to determine whether there was reciprocity:
Stuart v Bell [1891] 2 QB 341; Guise v Kouvelis (1947) 74 CLR 102.

23.41 The defence may be raised if there was publication by a person

having a common interest in the publication with the person to whom
publication is made. Here, the interest must be common and not merely
reciprocal: London Association for Protection of Trade v Greenlands Ltd
[1916] 2 AC 15; Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; 201
ALR 184. In Howe v Lees (1910) 11 CLR 361 at 369, it was stated:
Any legitimate object for the exercise of human faculties pursued by several persons in
association with another may be sufficient to establish community of interest. … “interest” does
not mean an interest in the particular fact communicated, but an interest in knowing that fact;
in other words, an interest in the subject matter to which the communication is relevant …

23.42 However, an interest is more than being interested as ‘a matter of

gossip or curiosity’: Howe v Lees (1910) 11 CLR 361 at 398; Telegraph
Newspaper Co Ltd v Bedford (1934) 50 CLR 632 at 662; Bruton v Estate Agents
Licensing Authority [1996] 2 VR 274 at 293. McHugh J in Bashford v
Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; 204 ALR 193
at [69] gives the example:
If the employer is asked whether the employee is fit to be employed as a gardener, it is unlikely
that the occasion of privilege would extend to details about the employee’s convictions for
negligent driving.

[page 586]

23.43 Publications made by a person in defence of reputation or property

to a person having an interest in receiving the publication may be protected.
For example, in Mowlds v Fergusson (1940) 64 CLR 206, the High Court
noted that a former Commissioner of Police, having been shown a report by
the defendant that defamed the plaintiff, would have an interest in receiving
information about his own administration. See also Bashford v Information
Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; 204 ALR 193 at [65];
Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31; 292 ALR 192 at [36].

23.44 It is rare for a defamatory publication to an audience at large to be

within the defence of qualified privilege, but it is possible if the material is
directed to persons who have an interest in the matter: Lange v Australian
Broadcasting Corporation (1997) 189 CLR 520 at 570; 145 ALR 96 at 114;
Aktas v Westpac Banking Corporation (2010) 241 CLR 79; 268 ALR 409;
Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31; 292 ALR 192 at [20].
For example, in Bowin Designs Pty Ltd v Australian Consumers Association
(1996) A Def R 52-078, an issue of Choice magazine contained an article
criticising the safety aspects of a gas heater. The issue was sent to
approximately 140,000 subscribers. Lindgren J held that the defence of
qualified privilege was established as the defendant had a moral and social
duty to alert owners of the heaters of the potential danger and that members
of the general public also had an interest in being warned. See also Bashford v
Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; 204 ALR
193, where the High Court held that there was reciprocity of duty or interest
in the publication of a bulletin to paid subscribers responsible for
occupational health and safety matters, noting that the ‘circumstances of
publication were, therefore, very different from those in which the general
news media deal with matters of political or other interest’: at [26].

23.45 A response to an attack by the plaintiff that, in itself, is defamatory

may be within the defence of qualified privilege: Loveday v Sun Newspapers
Ltd (1938) 59 CLR 503. If the attack by the plaintiff was published widely, for
example on radio, then it is more acceptable for the defendant’s reply to also
be published in a similar way: Loveday v Sun Newspapers Ltd (1938) 59 CLR
503; Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31; 292 ALR 192 at [32];
Penton v Calwell (1945) 70 CLR 219 at 233–4; [1945] ALR 262 at 265.
In Madden v Seafolly Pty Ltd (2014) 313 ALR 1, the appellant argued that
the respondent’s reply to her accusations that it had copied her designs had
gone beyond what was allowed to it on an occasion of qualified privilege. The
court held (at [150]):
The privilege protects the publication of untrue or defamatory matter provided that there is an
occasion supporting both the publication itself and its being published to the persons in the
audience to whom it is made. Thus, if a person published defamatory matter to a limited
audience, of say, one or two individuals in a private meeting, the person defamed would have a
privileged occasion to respond to that publication by putting his or her case to the audience, but,
ordinarily, would not be able to argue that a response in a public broadcast in the media or on
the internet was within a privileged occasion.

23.46 However, the response must not go beyond the original attack by
contained extraneous material, otherwise malice may be inferred: Turner v
Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449 at 470–1; Adam v
Ward [1917] AC 309; Bashford v Information Australia (Newsletters) Pty Ltd
(2004) 218 CLR 366; 204 ALR 193; Harbour

[page 587]

Radio Pty Ltd v Trad (2012) 247 CLR 31; 292 ALR 192. The response must be
relevant and proportionate: Penton v Calwell (1945) 70 CLR 219; [1945] ALR
262; Madden v Seafolly Pty Ltd (2014) 313 ALR 1.

Defamation legislation
23.47 The defamation legislation provision that is equivalent to the
common law is entitled ‘Defence of qualified privilege for the provision of
certain information’. The provision states:
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 defendant in publishing that matter is reasonable in the
 circumstances.

See Civil Law (Wrongs) Act 2002 (ACT) s 139A(1); Defamation Act 2005
(NSW) s 30(1); Defamation Act 2006 (NT) s 27(1); Defamation Act 2005
(Qld) s 30(1); Defamation Act 2005 (SA) s 28(1); Defamation Act 2005 (Tas) s
30(1); Defamation Act 2005 (Vic) s 30(1); Defamation Act 2005 (WA) s 30(1).
This differs to the common law position as it will apply when the recipient
has an interest or apparent interest and it requires that the conduct of the
defendant be reasonable.

23.48 Subsection (3) of the provision specifies what a court may take into
account when determining whether the publication was reasonable, for
example the extent of public interest in the matter, the steps taken to verify
the information and the seriousness of the defamatory imputation.
In Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652, the court
considered the reasonableness of the respondents publishing posters and
tweets containing defamatory imputations. It was held that the respondents
would have known that at the time of publishing the poster and tweets to
advertise the print and online articles that they would have been read by
persons who would not read the articles and therefore their understanding
would be restricted to the imputations conveyed by the poster and tweets: at
[240]. It was accepted that it the poster and tweets were conventional practice
to promote the sale of newspapers; however, White J did not accept that it
was reasonable for the respondents to do it in the manner they did as there
were ‘readily available alternative formats of the poster’ by which the articles
could have been promoted: at [243]. As to the tweets, his Honour noted, ‘the
140 character limit on tweets would still have permitted alternative forms of
eye catching promotion of the articles’: at [244].
See also, Forrest v Chlanda [2012] NTSC 14, where it was held that due to
the serious nature of defamatory imputations and the fact that the defendant
had made assumptions without verification when there was no urgency for
publishing meant that the conduct in publishing the article was not
reasonable and the defence of qualified privilege under s 27 of the Defamation
Act 2006 (NT) failed.

[page 588]

23.49 Subsection (4) of the provision provides that the defence of qualified
privilege is lost if the defendant was actuated by malice. The defamation
legislation provides that where malice may defeat a defence, the general law
applies to determine if there was malice: Civil Law (Wrongs) Act 2002 (ACT)
s 134(2); Defamation Act 2005 (NSW) s 24(2); Defamation Act 2006 (NT) s
21(2); Defamation Act 2005 (Qld) s 24(2); Defamation Act 2005 (SA) s 22(2);
Defamation Act 2005 (Tas) s 24(2); Defamation Act 2005 (Vic) s 24(2);
Defamation Act 2005 (WA) s 24(2).

Loss of qualified privilege

23.50 Unlike the defence of absolute privilege, the defence of qualified
privilege may fail if it is established by the plaintiff that the defendant had an
improper motive in publishing the material, referred to as ‘malice’ or the
publication exceeded the privileged occasion: Adam v Ward [1917] AC 309;
Cush v Dillon (2011) 243 CLR 298; 279 ALR 631.

23.51 For the defence to fail, the improper motive must be the dominant
motive for the publication: Roberts v Bass (2002) 212 CLR 1; 194 ALR 161 at
[104].Under the common law, malice may be of two kinds:
1. the defendant has used the occasion to publish the matter
complained of for a purpose other than that for which the privilege
is given (an improper purpose); or
2. the defendant did not have an honest belief in the truth of what was
published: Barbaro v Amalgamated Television Services Pty Ltd
(1985) 1 NSWLR 30 at 50–4.
 Malice, under the defamation legislation, would have the same meaning.

23.52 In the first type of malice, above, by introducing matter in a

publication that is not connected with the occasion that attracts privilege, the
defence is lost: Bellino v Australian Broadcasting Corporation (1996) 185 CLR
183 at 228. Knowledge that publication will cause injury to the plaintiff by
itself is not considered to be an improper purpose: Barbaro v Amalgamated
Television Services Pty Ltd (1985) 1 NSWLR 30.

23.53 As to the second form of malice, the defendant’s belief in the truth
of the publication need only be honest, not reasonable, but will include the
situation where a defendant publishes with reckless indifference as to whether
the matter is true or false: Roberts v Bass (2002) 212 CLR 1; 194 ALR 161.

23.54 In the case of Roberts v Bass (2002) 212 CLR 1; 194 ALR 161, it was
held that the lack of an honest belief in the truth of the publication by the
appellant or their knowledge that the publication was false, destroyed the
defence of qualified privilege: at [77]. The respondent was a member of
parliament in South Australia and the appellant was running in opposition in
the election for that seat. The appellant prepared and authorised three
publications as part of his campaign against the respondent, alleging that the
respondent had taken many overseas trips at the expense of taxpayers. The
respondent was not reelected and brought an action against the appellant in
defamation. The High Court held that evidence of the appellant’s lack of
belief or knowledge that the publications were false merely supported an
inference that the appellant had been actuated by an improper motive.
However, knowledge of falsity would be ‘almost conclusive evidence’ of
improper motive, except where the publisher is under a legal duty to publish:
at [83].

[page 589]
23.55 In Rowan v Cornwall (No 5) (2002) 82 SASR 152, the plaintiff
claimed damages for alleged defamatory material contained in a report that
was tabled in the Legislative Assembly of the South Australian Parliament.
The report was very critical of the running of a women’s shelter that was
administered by the plaintiff. The plaintiff alleged defamation against the
members of the committee and claimed that the defence of qualified privilege
was defeated by the malice of the members. It was held that the report of the
committee attracted qualified privilege; however, the evidence revealed a
history of antagonistic behaviour between the plaintiff and some of the
members of the committee. As the members had no honest belief in the truth
of the statements and had the improper purpose to denigrate the shelter, the
defence of qualified privilege was negated: at [513].

23.56 The malice of one of a number of defendants will not deprive others
of the defence unless those others are vicariously liable for the one motivated
by malice: Egger v Viscount Chelmsford [1965] 1 QB 248; [1964] 3 All ER 406;
but compare Jackson v Australian Consolidated Press Ltd [1966] 2 NSWR 775
at 782.
In Rowan v Cornwall (No 5) (2002) 82 SASR 152 at [518], Debelle J stated:
In England it has been held that, where a report published by a committee contains defamatory
material and qualified privilege is defeated by malice, only those members who were actuated by
malice are liable: Egger v Viscount Chelmsford [1965] 1 QB 248. In other words, the innocent
members of the committee are not infected with the malice of the others. However, the position
has not been conclusively resolved in Australia. In Webb v Bloch [(1928) 41 CLR 331], it was
held that all of the members of a committee were liable where malice existed only in a solicitor
who had written a report and another member of the committee. The reasoning of Isaacs J in
that case (at 363) may be based on the vicarious liability of the committee for the solicitor rather
than joint liability of the committee members. In that decision, Knox CJ and Isaacs J applied
Smith v Streatfield [1913] 3 KB 764, which was later overruled in Egger v Viscount Chelmsford.
Later, in Jackson v Australian Consolidated Press Ltd [1966] 2 NSWR 775 at 782, Smith v
Streatfield was said to be good law in Australia in light of the decision in Webb v Bloch. In
Dougherty v Chandler (1946) 46 SR (NSW) 370 at 375–376, Jordan CJ treated Webb v Bloch as
an instance of vicarious liability, preferring the view that the plaintiff will fail against any
defendant against whom “he is unable to sheet home express malice”, a view which Brennan J
also expressed in Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 at 254. I think
that the preferable view is that innocent members of a committee are not infected with the
 malice of others. Thus, if any member of the Review Committee is not guilty of malice, she will
not be liable because malice has been established in another.

23.57 As to the issue of malice and vicarious liability, it was held (at [519]):
The malice of a servant or agent may defeat the defence of qualified privilege of his or her
principal where the servant or agent has published the defamatory material in the course of his
or her employment.

Protected Reports
23.58 The law recognises that there is interest in judicial and
parliamentary proceedings and that reports of such are for the benefit of the
community. Therefore, publishers of the reports should be protected if they
are fair and accurate. The defence afforded to certain reports derives from the
defence of qualified privilege. It is possible that this defence may

[page 590]

be raised as well as the more general defence of qualified privilege as they are
two separate defences. As explained in Bashford v Information Australia
(Newsletters) Pty Ltd (2004) 218 CLR 366; 204 ALR 193 at [184]:
The social objects of each defence are different; but are equally important. The specific one
treats the public interest as conclusively established by proof that a report of certain proceedings
is fair (and accurate). The other upholds the public interest “where one person has a duty or
interest to make the statement and the recipient of the statement has a corresponding duty or
interest to receive it” (Roberts v Bass (2002) 212 CLR 1194 ALR 161 at [62]; see also at [160]; cf
Toogood v Spyring (1834) 1 CM & R 181 at 193; 149 ER 1044 at 1049–50; Stephens v West
Australian Newspapers Ltd (1994) 182 CLR 211 at 237–43, 260–4; 124 ALR 80 at 92–8, 111–4;
and Tobin and Sexton, Australian Defamation Law and Practice at [14,001]). Each defence, in its
different way, “promotes the welfare of society” (Roberts v Bass (2002) 212 CLR 1; 194 ALR 161
at [62]). Legal history rejects any suggestion that a publisher must make an irrevocable election
between such defences. The welfare of society does not oblige that such an election should now
be imposed by this court.

23.59 In Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519;

154 ALR 294 at [153], Kirby J summarised the principles relevant for the
defence:
To be a fair report it must be accurate.
It must be a report of the proceedings, any comment or opinion will
not be covered by the defence.
A summary of the proceedings is acceptable as long as it is
substantially accurate in all material aspects.
See also Waterhouse v Broadcasting Station 2GB Pty Ltd [1985] 1 NSWLR
58 at 63.
It is a question of fact whether a report is ‘fair and accurate’: Rogers v
Nationwide News Pty Ltd (2003) 216 CLR 327; 201 ALR 184.

Common law
23.60 Under the common law, protection is given to:
reports of judicial proceedings;
reports of proceedings in parliament (see Jones v John Fairfax & Sons
Ltd (1986) 4 NSWLR 466); and
reports of other bodies where there is public interest.

23.61 Judicial proceedings Fair and accurate reports of judicial

proceedings held in public are protected by qualified privilege: Lewis v Levy
(1858) EB & E 537; 120 ER 610; Waterhouse v Broadcasting Station 2GB Pty
Ltd [1985] 1 NSWLR 58. The defence only applies to judicial proceedings
held in open court and, therefore, will not be available if the public were
excluded from the proceedings. Reports of proceedings of tribunals are also
protected.
Reports of witness statements, affidavits and other documents filed at court
are not part of the judicial proceedings unless they are received by the court
as evidence during the proceedings: Stern v Piper [1997] QB 123; [1996] 3 All
ER 385.
 [page 591]

Reports of proceedings of inquiries held pursuant to executive or legislative

authority are protected if the publication is fair and accurate.

23.62 Parliamentary proceedings Parliamentary material published

outside of parliament, even if published without parliament’s consent, is
protected if fair and accurate: Jones v John Fairfax & Sons Ltd (1986) 4
NSWLR 466. If just a summary or extract is published, it must represent what
took place to be fair and accurate.

23.63 Public interest proceedings Fair and accurate reports of bodies

other than parliamentary or judicial, must involve some public interest to be
privileged. The status of the body, the nature of the defamation and the public
interest will all be relevant in determining whether the defence is available.
For example, in Bruton v Estate Agents Licensing Authority [1996] 2 VR
274, the appellant sued in defamation for statements contained in the
respondent’s annual report. The court held that the defence of qualified
privilege could apply to the respondent’s report as there was sufficient public
interest. However, by failing to include the full name of the real estate agent
who was disciplined, the annual report was not a fair and accurate report
(Allan Joseph Bruton was disciplined, plaintiff was Andrew James Bruton, the
report stated AJ Bruton).

Defamation legislation
23.64 The defamation legislation also provides protection for fair and
accurate reports, in terms of fair reports of proceedings of public concern and
publication of matters contained in public documents.

23.65 Proceedings of public concern In respect of proceedings of public

concern, the legislation provides:
 It is a defence to the publication of defamatory matter if the defendant proves that the
(1) matter was, or was contained in, a fair report of any proceedings of public concern.

(2) It is a defence to the publication of defamatory matter if the defendant proves that —
(a) the matter was, or was contained in, an earlier published report of proceedings of
public concern; and
(b) the matter was, or was contained in, a fair copy of, a fair summary of, or a fair extract
from, the earlier published report; and
(c) the defendant had no knowledge that would reasonably make the defendant aware
that the earlier published report was not fair.

See Civil Law (Wrongs) Act 2002 (ACT) s 139; Defamation Act 2005
(NSW) s 29; Defamation Act 2006 (NT) s 26; Defamation Act 2005 (Qld) s
29; Defamation Act 2005 (SA) s 27; Defamation Act 2005 (Tas) s 29;
Defamation Act 2005 (Vic) s 29; Defamation Act 2005 (WA) s 29.

23.66 Subsection (4) lists what ‘proceedings of public concern’ means,

providing a clear basis for occasions that will attract the defence. The list is
broad and includes, for example, public proceedings of a parliamentary body,
public proceedings of a court or tribunal of any country, proceedings of a
sport or recreation association or committee, proceedings of an

[page 592]

ombudsman of any country, public proceedings of a law reform body and

proceedings of a public meeting of shareholders of a public company.

23.67 Subsection (3) provides that the defence will be lost ‘if, and only if,
the plaintiff proves the defamatory matter was not published honestly and for
the information of the public or advancement of education’.
See Sinclair v Bjelke-Petersen [1984] 1 Qd R 484 at 492.

23.68 Public documents The other form of protection is provided for

publication of defamatory matter that was contained in a public document.
This overcomes some of the issues with the common law defence as it
specifies what public documents are for the purposes of the statutory defence.
See Civil Law (Wrongs) Act 2002 (ACT) s 138(1); Defamation Act 2005
(NSW) s 28(1); Defamation Act 2006 (NT) s 25(1); Defamation Act 2005
(Qld) s 28(1); Defamation Act 2005 (SA) s 26(1); Defamation Act 2005 (Tas) s
28(1); Defamation Act 2005 (Vic) s 28(1); Defamation Act 2005 (WA) s 28(1).

23.69 The term ‘public document’ is defined in subs (4) of the provision
and includes any report or paper published by a parliamentary body, a
judgment or order of a court or tribunal, any document issued by the
government for the information of the public, and documents kept by
Australian statutory authorities or courts that are open for public inspection.
The subsection also allows for parliament to specify a document as a public
document for the purpose of the defence.
In Lower Murray Urban and Rural Water Corp v Di Masi (2014) 43 VR
348, the Victorian Minister for Water sent a letter to the appellant to be
distributed to its customers to inform them that he had appointed the
appellant to assume the functions and duties of the First Mildura Irrigation
Trust. The letter stated that the members of that board had broken the law by
investing funds of the trust without Treasury approval. The appellant
distributed the letter to its customers and also uploaded it to its website. The
former members of the board sued the appellant for defamation in respect of
the website publication. The appellant argued that the publication was
privileged under the common law and the corresponding provision of the
defamation legislation, and was a protected public document under s 28(4)(d)
(any document issued by the government for the information of the public)
of the Defamation Act 2005 (Vic). The court held that although the
defamation legislation added to the common law defences, that did not mean
that they were to be given a wide or beneficial interpretation and regard had
to be had to any underlying purpose and object: at [64]. It was held that the
Minister’s subjective purpose in issuing the letter was a relevant consideration
in determining whether the letter had been issued for the information of the
public. At trial, the jury had found that the purpose of the letter was not for
the information of the public. The Court of Appeal noting that in light of all
of the evidence, perhaps the purpose was defensive or political, but this could
not be known: at [73]. As the publication was not within the objective of s
28(4)(d), the defence failed.

23.70 As noted, at 23.67, the defence may be negated.

[page 593]

In Waterhouse v Broadcasting Station 2GB Pty Ltd [1985] 1 NSWLR 58, the
court considered the requirement of the now repealed Defamation Act 1974
(NSW) s 26, that the publication be for the information of the public or for
the advancement of education. Hunt J stated (at 63):
The purpose of the publisher must be … to publish the report for public information or for the
advancement of education. Such a purpose usually appears from the terms of the matter
complained of and from the nature of the vehicle in which it is published: Calwell v Ipec
Australia Ltd (1975) 135 CLR 321 at 331. Where the matter complained of purports to be a
court report and it appears in a newspaper for general sale in the community, the required
purpose is established. Similarly, if it purports to be a report and appears in a legal textbook;
whilst the publication in those circumstances may not be for the information of the public, it
would be for the advancement of education. Each such purpose looks not to the result which the
defendant seeks to achieve by his publication so much as the effect which the defendant
intended his publication to have upon the minds of its recipients.

Implied Constitutional Protection

23.71 Publications to the world at large will lack the required reciprocity
to attract the defence of qualified privilege: Theophanous v Herald & Weekly
Times Ltd (1994) 182 CLR 104; Lange v Australian Broadcasting Corporation
(1997) 189 CLR 520; 145 ALR 96; Australian Broadcasting Corporation v
O’Neill (2006) 227 CLR 57; 229 ALR 457. However, the requisite reciprocity
will exist if the publication to the world at large is about government or
political matters.

23.72 The High Court in Theophanous v Herald & Weekly Times Ltd
(1994) 182 CLR 104 recognised a freedom to publish political discussions
implied in the Commonwealth Constitution. A similar freedom of
communication was also implied in a state constitution: Stephens v West
Australian Newspapers Ltd (1994) 182 CLR 211; 124 ALR 80.

23.73 In Lange v Australian Broadcasting Corporation (1997) 189 CLR 520

at 560; 145 ALR 96 at 106–7, the court expressed the freedom as (at CLR 566;
ALR 12):
… ss 7 and 24 and the related sections of the Constitution necessarily protect that freedom of
communication between the people concerning political or government matters which enables
the people to exercise a free and informed choice as electors. Those sections do not confer
personal rights on individuals. Rather they preclude the curtailment of the protected freedom by
the exercise of legislative or executive power.

The court further held that the defences to defamation available both at
common law and under a statute must operate subject to the requirements of
the Constitution:
In any particular case, the question whether a publication of defamatory matter is protected by
the Constitution or is within a common law exception to actionable defamation yields the same
answer. But the answer to the common law question has a different significance from the answer
to the constitutional question. The answer to the common law question prima facie defines the
existence and scope of the personal right of the person defamed against the person who
published the defamatory matter; the answer to the constitutional law question defines the area
of immunity which cannot be infringed by a law of the Commonwealth, a law of a State or a law
of those Territories whose residents are entitled to exercise the federal franchise. That is because

[page 594]

the requirement of freedom of communication operates as a restriction on legislative power.

Statutory regimes cannot trespass upon the constitutionally required freedom.

…
 The common law may be developed to confer a head or heads of privilege in terms broader than
those which conform to the constitutionally required freedom, but those terms cannot be any
narrower. Laws made by Commonwealth or State Parliaments or the legislatures of self-
governing territories which are otherwise within power may therefore extend a head of privilege,
but they cannot derogate from the common law to produce a result which diminishes the extent
of the immunity conferred by the Constitution.

In Lange v Australian Broadcasting Corporation (Lange), the plaintiff was a

former Prime Minister of New Zealand and was complaining of allegedly
defamatory matter published while he was a member of the New Zealand
Parliament. The defendant was relying on the decisions of the High Court in
Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 and Stephens
v West Australian Newspapers Ltd (1994) 182 CLR 211; 124 ALR 80, and on
the common law defence of qualified privilege. The parties had agreed that
the case was to be decided on the basis of the law of New South Wales. The
court stated (at CLR 570–1; ALR 114–15):
The basis of this common law rule is that reciprocity of interest or duty is essential to a claim of
qualified privilege at common law. Only in exceptional cases has the common law recognised an
interest or duty to publish defamatory matter to the general public. However, the common law
doctrine as expounded in Australia must now be seen as imposing an unreasonable restraint on
that freedom of communication, especially communication concerning government and
political matters, which “the common convenience and welfare of society” now requires.
Equally, the system of government prescribed by the Constitution would be impaired if a wider
freedom for members of the public to give and to receive information concerning government
and political matters were not recognised.

Because the Constitution requires “the people” to be able to communicate with each other with
respect to matters that could affect their choice in federal elections or constitutional referenda or
that could throw light on the performance of Ministers of State and the conduct of the executive
branch of government, the common law rules concerning privileged communications, as
understood before the decision in Theophanous, had reached the point where they failed to meet
the requirement. However, the common law of defamation can and ought to be developed to
take into account the varied conditions to which McHugh J referred. The common law rules of
qualified privilege will then properly reflect the requirements of ss 7, 24, 64, 128 and related
sections of the Constitution. Accordingly, the Court should now declare that each member of
the Australian community has an interest in disseminating and receiving information, opinions
and arguments concerning government and political matters that affect the people of Australia.
The duty to disseminate such information is simply the correlative of the interest in receiving it.
 The common convenience and welfare of Australian society are advanced by discussion — the
giving and receiving of information — about government and political matters. The interest that
each member of the Australian community has in such a discussion extends the categories of
qualified privilege.

[page 595]

Therefore, under the common law the defence of qualified privilege was
extended to include statements made in discussion of political and
government matters.

23.74 For the defence to be successful:

the alleged defamatory matter must be about government or political
matters;
the publication must be reasonable in all of the circumstances; and
the defendant must not be actuated by malice.

Government or political matters

23.75 In Lange at CLR 571; ALR 115–16, it was stated by the court that the
defence would apply to:
‘matters concerning the United Nations or other countries … even if
those discussions cannot illuminate the choice for electors at federal
elections or in amending the Constitution or cannot throw light on the
administration of federal government’; and
‘discussion of government or politics at State or Territory level and
even at local government level’.
In Wotton v Queensland (2012) 285 ALR 1; 86 ALJR 246, the High Court
held that public discussion of matters related to Aboriginal and Indigenous
affairs, particularly interaction between Aboriginal persons and law
enforcement, was a field of communication about the government or political
matters.
Reasonable publication
23.76 Whether the publication was reasonable is determined in light of all
of the circumstances of the case. In Lange at CLR 572; ALR 116, the court
held that reasonableness ‘goes beyond mere honesty, is properly to be seen as
reasonably appropriate and adapted to the protection of reputation and, thus,
not inconsistent with the freedom of communication which the Constitution
requires’. The court also held that if the material published is false, it will not
be considered to be reasonable unless the defendant can establish that they
were unaware that the material was false and were not reckless in publishing
the material. The court stated (at CLR 574; ALR 118):
[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 [of the defamatory material] 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. [footnotes omitted]

Malice
23.77 As the defence is an extension of the common law defence of
qualified privilege, the defence will fail if the defendant was motivated by
malice. By malice, the High Court

[page 596]

in Lange was referring to some improper purpose not connected with

communications of government or political information or ideas. The desire
to gain a political advantage by itself is not to be regarded as improper,
regardless of ‘the vigour of an attack or the pungency of a defamatory
statement’: at CLR 574; ALR 118.
Fair Comment/Honest Opinion
23.78 The defence of fair comment developed under the common law
allows an honestly held opinion or criticism to be expressed. In London
Artists Ltd v Littler [1969] 2 QB 375 at 391, Lord Denning stated:
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 to others; then it is a
matter of public interest on which everyone is entitled to make fair comment.

This defence is an important one for the media as it allows comments and
reviews to be published on a range of topics. The defence is justified on the
right of freedom of speech in that every person has a right to express an
opinion on matters of public interest: Kemsley v Foot [1951] 2 KB 34 at 46.
The defamation legislation provides the defence of honest opinion which is
very similar to the common law defence of fair comment.

Common law
23.79 In Cripps v Vakras [2014] VSC 279 at [344]–[351], Kyrou J stated
the principles of the defence of fair comment:
The imputation must be a comment, as opposed to a fact.
The comment must relate to a matter of public interest.
The comment must be based upon facts stated or referred to in the
publication, or must be notorious.
The facts upon which the comment is based must be true.
The comment must be fair, that is, that of an honest person.

23.80 Comment based upon true facts The defence is available only for
an expression of opinion and not statements of fact: Illawarra Newspapers v
Butler [1981] 2 NSWLR 502; Radio 2 UE Sydney Pty Ltd v Parker (1992) 29
NSWLR 448; Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR
309; Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; 241 ALR
468. Under the common law, to be regarded as comment, the matter must be
presented as a matter of inference from, or opinion about, its subject:
O’Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166; Kemsley v Foot
[1952] AC 345; Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153
at 167–8.

23.81 It is a question of fact whether a statement is one of fact or opinion:

Bamberger v Mirror Newspapers Ltd (1969) 43 ALJR 242. The test is whether a
reasonable person would understand the statement to be the defendant’s
opinion: Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; 241
ALR 468 at [3]; Hawke v Tamworth Newspaper Co Ltd [1983] 1 NSWLR 699
at 704. In O’Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166,

[page 597]

it was held that the publication (a review of a play production) went beyond
opinion as the reasonable person could understand the review to be
attributing an improper motive to the plaintiff. In Seafolly Pty Ltd (ACN 001
537 748) v Madden (2012) 297 ALR 337, the appellant argued that its press
releases in response to the respondent’s claims that it had copied her
swimwear designs were comment as they represented the views of the chief
executive office of the appellant. The court disagreed, holding that the press
releases did not manifest an intention to comment of the respondent’s
allegations, but were statements of fact — that the respondent had acted
maliciously with the intent of damaging the appellant’s commercial interests.

23.82 The facts upon which the opinion is based must appear in the
publication or be ‘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’: Pervan v North
Queensland Newspaper Co Ltd (1993) 178 CLR 309 at 327; Channel Seven
Adelaide Pty Ltd v Manock at [5], [47], [69].
23.83 Where an opinion is coupled with statements of fact upon which the
opinion is based, the defendant must show that the ‘facts’ upon which the
opinion was grounded were correct: Silkin v Beaverbrook Newspapers Ltd
[1958] 2 All ER 516; [1958] 1 WLR 743; Australian Broadcasting Corporation
v Comalco Ltd (1986) 68 ALR 259 at 302. Jordan CJ commented in
Goldsbrough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524 at 534:
The question really is whether it can be regarded as fair to publish defamatory comments on
defamatory statements of fact which, although true, it is unlawful to publish because it is not for
the public benefit that they should be published. I am of the opinion that it cannot. It follows
that in my opinion, in New South Wales, where the defamatory matter complained of, consists
of both facts and comment the defence of fair comment is not, in principle, available as to the
comment unless it can be established that the defamatory facts relied on as the basis for the
comment, or some of them, were true, and that it was for the public benefit that they should be
published.

An important reason for requiring proof of the truth of facts commented

on was given by Lord Griffiths in Austin v Mirror Newspapers Ltd [1986] AC
299 at 317; 63 ALR 149 at 159:
When a journalist wishes to make such a trenchant and potentially damaging attack it is in the
interests of society that he should be expected to take all reasonable steps to ensure that he has
got his facts right. The media has enormous power both for good and ill and it would be a sorry
day if newspapers were encouraged to believe that under the shield of qualified privilege the
reputations of individuals could be attacked by slipshod journalism that would provide no
defence of comment because the facts on which the attack was based were not true.

23.84 Public interest The opinion requires that the comment be upon a
matter of public interest. It is for the judge to decide whether a matter is of
public interest: South Hetton Coal Co Ltd v North Eastern News Association
Ltd [1894] 1 QB 133.

23.85 To be of ‘public interest’ it must relate to a public role or activity:

Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR (NSW) 171. The fact
that the person the subject of the comment is a public figure does not
necessarily mean the defence will be able to be claimed. To fit within the
defence, the public figure’s behaviour or character must affect the
 [page 598]

performance of their public duties. However, in John Fairfax Publications Pty

Ltd v Hitchcock (2007) 70 NSWLR 484 at [176], it was held that, if a person
courts publicity, what would ordinarily be considered to be private conduct
may be a matter of public interest.

23.86 A plaintiff who performs publicly invites comment. Therefore,

authors, artists, musicians, singers and actors who display their work to the
public may be commented on and criticisms of the work may fall within the
defence of honest opinion: Gardiner v John Fairfax & Sons Pty Ltd (1942) 42
SR (NSW) 171 at 173–4.

23.87 Fair The opinion must be ‘fair’ in the sense of honest, based upon
the standard of the reasonable person: O’Shaughnessy v Mirror Newspapers
Ltd (1970) 125 CLR 166; Silkin v Beaverbrook Newspapers Ltd [1958] 2 All ER
516; [1958] 1 WLR 743; Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR
474, affirmed [1982] 1 NSWLR 498. In Channel 7 Adelaide Pty Ltd v Manock
(2007) 241 ALR 468 at [3], per Gleeson CJ, the High Court held that ‘“fair”
refers to the limits to what any honest person, however opinionated or
prejudiced, would express upon the basis of the relevant facts’.

23.88 Comment will not be honest if the defendant was motivated by

malice: Thomas v Bradbury, Agnew & Co Ltd [1906] 2 KB 627; Falcke v
Herald and Weekly Times Ltd [1925] VLR 56; Comalco Ltd v Australian
Broadcasting Corporation (1985) 64 ACTR 1. Malice may be established by
proving that at the time of the publication the defendant did not honestly
hold the opinion: French v Triple M Melbourne Pty Ltd [2008] VSC 553.

23.89 Malicious motive by itself may not establish that the comment was
not fair, but may be evidence that the opinion was not honestly held: Branson
v Bower [2002] QB 737 at [8]. In Renouf v Federal Capital Press of Australia
Pty Ltd (1977) 17 ACTR 35 at 54, Blackburn CJ stated:
If the plaintiff can show that the opinion presented by the comment was affected by personal
hostility, or some such irrelevant motive, in such a way that it does not represent a disinterested
judgment upon the matter which is the subject of the comment, then the reply of malice
succeeds, notwithstanding that it is not proved that the comment was insincere — ie did not
represent the defendant’s real opinion.

23.90 If a person is motivated by malice in the preparation of a

publication, any party vicariously liable for the acts of that person will be
unable to claim the defence of fair comment: Falcke v Herald & Weekly Times
Ltd [1925] VLR 56. If the publisher makes it clear that views expressed in the
publication are not their own and they do not adopt them, they may be able
to claim the defence: Telnikoff v Matusevitch [1992] 2 AC 343.

Defamation legislation
23.91 Under the defamation legislation, the defence of honest opinion
may be raised when:
(a) the matter was an expression of opinion of the defendant rather than a statement of fact;
and
(b) the opinion related to a matter of public interest; and
(c) the opinion is based on proper material.

[page 599]

The legislation specifies three situations where honest opinion may be

claimed:
when the matter was an expression of opinion of the defendant;
when the matter was an expression of opinion of an employee or agent
of the defendant; and
the matter was an expression of opinion of someone other than the
 defendant or employee or agent of the defendant.
See Civil Law (Wrongs) Act 2002 (ACT) s 139B; Defamation Act 2005
(NSW) s 31; Defamation Act 2006 (NT) s 28; Defamation Act 2005 (Qld) s
31; Defamation Act 2005 (SA) s 29; Defamation Act 2005 (Tas) s 31;
Defamation Act 2005 (Vic) s 31; Defamation Act 2005 (WA) s 31.

23.92 Subsection (4) of the provisions state that the defence will fail if the
opinion was not honestly held at the time of publication, and subs (5)
specifies what is considered to be ‘proper material’, for example material that
is substantially true or material published on an occasion of absolute or
qualified privilege under the common law or the legislation.

Innocent Dissemination
23.93 The defence of innocent dissemination is an exception to the rule
that every participant in the publication of defamatory material is liable for
the defamation: see 22.79. The defence provides protection for innocent
disseminators, that is, the persons who sell or distribute the publication
containing the defamatory matter.

Common law
23.94 If a publisher can establish that they did not know the publication
contained defamatory matter, through no negligence of their own, and that
there was nothing to indicate the existence of defamatory matter, the defence
of innocent dissemination may be relied on: McPhersons Ltd v Hickie (1995)
Aust Torts Reports ¶81-348.
Traditionally, the defence was only available to subsequent publishers; it
was not available to the author, the printer or the main publisher. Changes in
printing technology, under which printers may today have no knowledge of
the content they publish, may require a reconsideration of the extension of
innocent publication to such printers: McPhersons Ltd v Hickie. In Thompson
v Australian Capital Television Pty Ltd (1996) 186 CLR 574; 141 ALR 1, the
same reasoning was argued by a television station that relayed a current
affairs program produced by another station. The High Court held that there
was no reason why a distributor of electronic material could not rely on the
defence of innocent dissemination. However, the television station in the case
before the court had the power to control and supervise the material it
televised and was not merely a conduit; therefore, it was unable to rely on the
defence of innocent dissemination.
The Broadcasting Services Act 1992 (Cth) provides limited protection to
internet service providers (ISPs) and internet content hosts (ICHs): Sch 5, cl
91. If the ISP or ICH becomes aware of the defamatory material, the material
must be removed within a reasonable time, otherwise it will become a
publisher.

[page 600]

Defamation legislation
23.95 The defence of innocent dissemination in the defamation legislation
would apply to the same scenarios as under the common law. The defamation
legislation provides:
(1) It is a defence to the publication of defamatory matter if the defendant proves that —
(a) the defendant published the matter merely in the capacity, or as an employee or agent,
of a subordinate distributor; and
(b) the defendant neither knew, nor ought reasonably to have known, that the matter was
defamatory; and
(c) the defendant’s lack of knowledge was not due to any negligence on the part of the
defendant.

See Civil Law (Wrongs) Act 2002 (ACT) s 139C; Defamation Act 2005
(NSW) s 32; Defamation Act 2006 (NT) s 29; Defamation Act 2005 (Qld) s
32; Defamation Act 2005 (SA) s 30; Defamation Act 2005 (Tas) s 32;
Defamation Act 2005 (Vic) s 32; Defamation Act 2005 (WA) s 32.
 ‘Subordinate distributor’ is defined in subs (2) as the person who:
(a) was not the first or primary distributor of the matter; and
(b) was not the author or originator of the matter; and
(c) did not have any capacity to exercise editorial control over the content of the matter (or
over the publication of the matter) before it was first published.

Subsection (3) provides a non-exhaustive list of who is not a first or

primary distributor:
Without limiting subsection (2)(a), a person is not the first or primary distributor of matter
merely because the person was involved in the publication of the matter in the capacity of —
(a) a bookseller, newsagent or news-vendor; or
(b) a librarian; or
(c) a wholesaler or retailer of the matter; or
(d) a provider of postal or similar services by means of which the matter is published; or
(e) a broadcaster of a live programme (whether on television, radio or otherwise)
containing the matter in circumstances in which the broadcaster has no effective
control over the person who makes the statements that comprise the matter; or
(f) a provider of services consisting of —
(i) the processing, copying, distributing or selling of any electronic medium in or on
which the matter is recorded; or
(ii) the operation of, or the provision of any equipment, system or service, by means
of which the matter is retrieved, copied, distributed or made available in
electronic form; or
(g) an operator of, or a provider of access to, a communications system by means of
which the matter is transmitted, or made available, by another person over whom the
operator or provider has no effective control; or
(h) a person who, on the instructions or at the direction of another person, prints or
produces, reprints or reproduces or distributes the matter for or on behalf of that
other person.

[page 601]

23.96 The defamation legislation expressly refers to the ‘author or

originator of the matter’ as not being able to claim the defence and this is
consistent with the common law approach. Under the defamation legislation,
a broadcaster of a live program is not a first or primary distributor and will
not be liable if ‘the broadcaster has no effective control over the person who
makes the statements that comprise the matter’: see subs (3)(e).

Triviality
23.97 Under the common law, in the Australian jurisdictions where there
was a distinction between slander and libel, the absence of damage in an
action for slander meant that the action would fail: see 22.15. Under the
defamation legislation, there is now no distinction between libel and slander,
but the legislation provides the defence of triviality:
It is a defence to the publication of defamatory matter if the defendant proves that the
circumstances of publication were such that the plaintiff was unlikely to sustain any harm.

See Civil Law (Wrongs) Act 2002 (ACT) s 139D; Defamation Act 2005
(NSW) s 33; Defamation Act 2006 (NT) s 30; Defamation Act 2005 (Qld) s
33; Defamation Act 2005 (SA) s 31; Defamation Act 2005 (Tas) s 33;
Defamation Act 2005 (Vic) s 33; Defamation Act 2005 (WA) s 33.
In Szanto v Melville [2011] VSC 574 at [157], the following was noted
about the defence of triviality under the defamation legislation:
[I]n order to sustain the defence, the defendant must prove that the circumstances were such
that the plaintiff was unlikely to suffer “any” harm. Such an onus is, self-evidently, a high onus.
Secondly, the defendant must prove that, such were the circumstances of the publication, that
the plaintiff was “unlikely” to sustain any harm. In Jones v Sutton [(2004) 61 NSWLR 614 at
624–5], Beasley JA (with whom Santow JA and Stein AJA agreed) held that the phrase “not
likely to cause harm” refers to “the absence of a real chance” or the “absence of a real possibility”
of harm. [footnotes omitted]

23.98 In deciding whether the defamation is trivial, a court will consider

whether the imputation within the context of the whole publication is
unlikely to cause the plaintiff any harm. Factors such as the nature of the
defamatory matter, the manner of publication, the audience to whom it was
published and the place of publication are all relevant: Morosi v Mirror
Newspapers Ltd [1977] 2 NSWLR 749 at 800. See also Cuncliffe v Woods
[2012] VSC 254 (letter published to a confined audience, aware of the truth
and recipients did not think any less of the plaintiff).

23.99 The defence is similar to that of the now repealed s 13 of the

Defamation Act 1974 (NSW) and s 126 of the Civil Law (Wrongs) Act 2002
(ACT) (partially repealed). The Queensland and Tasmanian Codes also
contained a similar defence; however, it was limited to ‘any case other than
that of words intended to be read’: Defamation Act 1889 (Qld) s 20
(repealed); Defamation Act 1957 (Tas) s 9(2) (repealed).

Consent
23.100 Similar to other areas of the law of torts, consent by the plaintiff to
what has occurred may act as a bar to what, otherwise, would have been an
actionable tort.

[page 602]

Consequently, consent by the plaintiff to the publication is a complete

defence: Cookson v Harewood [1932] 2 KB 478. Whether there was consent to
the publication of the defamatory imputation is a question of fact.

23.101 The consent may be express or implied, but consent to one form of
publication does not imply consent to another: Chapman v Ellesmere [1932] 2
KB 431. Consent will not necessarily be implied from a request by the plaintiff
that the person to whom the matter was previously published be present for a
republication: Misson v McOwan [1906] VLR 280; (1906) 12 ALR 478. See
also Orr v Isles [1965] NSWR 677 at 694.
In Ettingshausen v Australian Consolidated Press Ltd (NSWSC, Hunt J, 11
March 1993, unreported), the defence of consent was considered. In that case,
the plaintiff’s photograph had been published and it showed him in a
defamatory light: see Ettingshausen v Australian Consolidated Press Ltd
(1991) 23 NSWLR 443. The photograph had been taken by an official
photographer travelling with the plaintiff’s football team. The defendant
argued that the plaintiff had consented to the photograph as he knew that
pictures would be taken on the tour for a book to be published. Hunt J held
that the defence had not been established as there was no evidence that the
plaintiff had consented to the defamatory imputation. His Honour stated (at
11):
The defence of consent must establish … that the plaintiff had consented to the act being done
towards him of which he now complains. The first of the acts of which he complains is that the
photograph was published in a context which conveyed the imputation that he had consented to
its publication showing his penis. It is his consent to that act which the defendant must
establish. Any implied consent by the plaintiff to the reproduction of the photograph in a
publication with a widespread readership was not a consent to the publication of everything
which the photograph may show. There is nothing in the evidence to suggest that his consent
went so far.

Acceptance of Offer to Make Amends

23.102 The defamation legislation has put in place a process for the
resolution of defamation disputes without litigation, one of the objects of the
legislation: Civil Law (Wrongs) Act 2002 (ACT) s 115(d); Defamation Act
2005 (NSW) s 3(d); Defamation Act 2006 (NT) s 2(d); Defamation Act 2005
(Qld) s 3(d); Defamation Act 2005 (SA) s 3(d); Defamation Act 2005 (Tas) s
3(d); Defamation Act 2005 (Vic) s 3(d); Defamation Act 2005 (WA) s 3(d). A
defendant may make to the plaintiff an offer to make amends. The offer must:
be in writing;
specify what defamatory imputations the offer relates to;
offer to publish a reasonable correction;
offer payment of reasonable expenses incurred by the plaintiff prior to
the offer; and
include other methods of redress, for example the payment of
compensation for economic and non-economic loss.
 See Civil Law (Wrongs) Act 2002 (ACT) Div 9.3.1; Defamation Act 2005
(NSW) Pt 3 Div 1; Defamation Act 2006 (NT) Pt 3 Div 1; Defamation Act
2005 (Qld) Pt 3 Div 1; Defamation Act 2005 (SA) Pt 3 Div 1; Defamation Act
2005 (Tas) Pt 3 Div 1; Defamation Act 2005 (Vic) Pt 3 Div 1; Defamation Act
2005 (WA) Pt 3 Div 1.

[page 603]

23.103 If the plaintiff accepts the offer to make amends and the terms of
the offer are carried out by the defendant, the plaintiff cannot maintain an
action in defamation in respect of the publication: Civil Law (Wrongs) Act
2002 (ACT) s 129; Defamation Act 2005 (NSW) s 17; Defamation Act 2006
(NT) s 16; Defamation Act 2005 (Qld) s 17; Defamation Act 2005 (SA) s 17;
Defamation Act 2005 (Tas) s 17; Defamation Act 2005 (Vic) s 17; Defamation
Act 2005 (WA) s 17.

3 Remedies
23.104 The primary remedies for the publication of defamatory matter are
an injunction, used to prevent publication or stop republication, and
damages. It is not possible at common law, nor under the defamation
legislation, to force a publisher to retract a statement or to apologise, although
an offer of, or the making of, an apology, is admissible in evidence in
mitigation of damages: see 23.131.

Injunction
23.105 A plaintiff may seek an injunction to prevent the initial publication
or the republication of defamatory matter. Injunctions to enjoin threatened
publications of defamatory matter are only granted in the clearest cases. This
is because of the regard accorded to preservation of freedom of speech: see
Shiel v Transmedia Productions Pty Ltd [1987] 1 Qd R 199 at 205; Australian
Broadcasting Corporation v O’Neill (2006) 227 CLR 57; 229 ALR 457.

23.106 If a plaintiff wishes to prevent the initial publication or continuing

publication until the defamation action is heard by the court, they must seek
an interlocutory injunction. The court will only grant an interlocutory
injunction in the clearest of cases when the matter is clearly defamatory and if
published would cause significant harm to the plaintiff: Stocker v McElhinney
(No 2) [1961] NSWR 1043 at 1048; (1961) 79 WN (NSW) 541; Chappell v
TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 at 158.

23.107 In the decision of Church of Scientology of California Inc v Readers

Digest Services Pty Ltd [1980] 1 NSWLR 344 at 349, Hunt J stated:
I accept as the settled law that the power to grant interlocutory injunctions in defamation cases
must be exercised with great caution, and only in very clear cases. A plaintiff must establish that
a subsequent finding by a jury that the matter complained of was not defamatory of him would
be set aside as unreasonable; that there is no real ground for supposing that the defendant may
succeed upon any defence of justification, privilege or comment, and that he, the plaintiff, is
likely to recover more than nominal damages only. In particular, questions of privilege and
malice are not normally appropriate to be decided upon an interlocutory application. Nor will
an injunction go which will have the effect of restraining the discussion in the press of matters of
public interest or concern.

See also Shiel v Transmedia Productions Pty Ltd [1987] 1 Qd R 199 at 205.
No injunction will be granted by a court if it is a matter of public interest,
unless publication would be contempt of court: Church of Scientology of
California Inc v Reader’s Digest Services Pty Ltd [1980] 1 NSWLR 344 at 350,
352 per Hunt J; Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153
at 163–4.

[page 604]

23.108 In Australian Broadcasting Corporation v O’Neill (2006) 227 CLR

57; 229 ALR 457, the respondent was granted an interlocutory injunction by
the Supreme Court of Tasmania to prevent the appellant from broadcasting a
documentary, The Fisherman, about the respondent, a convicted murderer.
The alleged defamatory matters were imputations that the respondent was
involved in the disappearance of three children on Australia Day 1966. The
respondent had been convicted of the murder of a nine-year-old boy in
November 1975, after signing a confession. In this defamation case, the
appellant was unsuccessful on its appeal and then appealed to the High Court.
The majority of the High Court held that there was a strong case against
the granting of the interlocutory injunction. Gleeson CJ and Crennan J held
that, when granting an interlocutory injunction, a court must take into
account the significance of the value of freedom of speech and the possibility
that, if publication took place and involved an actionable defamation, only
nominal damages might be awarded. The respondent was a convicted
murderer, serving a life sentence and had confessed to another murder. To
say he had also committed other murders (that is, of the three children)
would not attract substantial damages.

23.109 A defendant may give evidence of a defence at the hearing for the
interlocutory injunction. The defence does not have to be proven, but there
must be sufficient evidence to satisfy the court that the defence has some
prospect of success: Shiel v Transmedia Productions Pty Ltd [1987] 1 Qd R
199 at 206–7.

23.110 If the defamatory matter has been published, an interlocutory

injunction may be sought to prevent its republication: Australian
Broadcasting Corporation v O’Neill (2006) 227 CLR 57; 229 ALR 457.

23.111 It is possible for the court to grant a permanent injunction at trial if

there is the possibility of republication.

Damages
23.112 As with other torts, the primary remedy for defamation is
damages. Damages are awarded ‘at large’ which means not only proven
pecuniary losses may be compensated. A plaintiff may be awarded:
damages for non-economic loss; and
damages for economic loss resulting from the defamatory publication.

23.113 The defamation legislation prohibits the award of exemplary

damages: 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.

23.114 The state of the defendant’s mind at the time of publication,

including any malice, is irrelevant to the assessment of damages, except to the
extent it affects the harm sustained by the plaintiff: Civil Law (Wrongs) Act
2002 (ACT) s 139G; Defamation Act 2005 (NSW) s 36; Defamation Act 2006
(NT) s 33; Defamation Act 2005 (Qld) s 36; Defamation Act 2005

[page 605]

(SA) s 34; Defamation Act 2005 (Tas) s 36; Defamation Act 2005 (Vic) s 36;
Defamation Act 2005 (WA) s 36.

Non-economic loss
23.115 Claims for non-economic damages are for injury to the plaintiff’s
reputation, injured feelings, indignation, fear and the psychological need for
satisfaction: Mirror Newspaper Ltd v Jools (1985) 65 ALR 174. The difficulties
in assessing damages were highlighted in Uren v John Fairfax & Sons Pty Ltd
(1966) 117 CLR 118 at 150, where Windeyer J stated:
When it is said that in an action for defamation damages are given for an injury to the plaintiff’s
reputation, what is meant? A man’s reputation, his good name, the estimation in which he is
 held in the opinion of others, is not a possession of his as a chattel is. Damage to it cannot be
measured as harm to a tangible thing is measured. Apart from special damages strictly so called
and damages for a loss of clients or customers, money and reputation are not commensurables.
It seems to me that, properly speaking, a man defamed does not get compensation for his
damaged reputation. He gets damages because he was injured in his reputation, that is simply
because he was publicly defamed. For this reason, 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.

23.116 In Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60; 113
ALR 577 at 588–9, the High Court identified three objectives that an award of
damages for defamation seeks to achieve:
1. consolation for the personal distress and hurt to the plaintiff by the
publication;
2. reparation for the harm done to the plaintiff’s personal and
professional reputation; and
3. vindication of the plaintiff’s reputation.

23.117 As to how to assess damages for defamation to achieve these

objectives, there are no clear guidelines. In the defamation legislation there is
the general direction that a court must ‘ensure that there is an appropriate
and rational relationship between the harm sustained by the plaintiff and the
amount of damages awarded’: Civil Law (Wrongs) Act 2002 (ACT) s 139E;
Defamation Act 2005 (NSW) s 34; Defamation Act 2006 (NT) s 31;
Defamation Act 2005 (Qld) s 34; Defamation Act 2005 (SA) s 32; Defamation
Act 2005 (Tas) s 34; Defamation Act 2005 (Vic) s 34; Defamation Act 2005
(WA) s 34. In Prendergast v Roberts [2012] QSC 144 at [38], it was stated:
The harm sustained by the plaintiff for the purpose of s 34 of the Act must cover all the
components of the award for compensatory damages and relevantly incorporates the hurt and
distress caused to the plaintiff by the defamation and the need for vindication, in addition to the
harm to the plaintiff’s reputation.

23.118 The harm that is the consequence of publication of the defamatory

matter is assessed to take into account the consequences up until the
conclusion of the litigation: Herald & Weekly Times Ltd v McGregor (1928) 41
CLR 254 at 263; Humphries v TWT Ltd (1993) 120 ALR 693 at 706; Ali v
Nationwide News Pty Ltd [2008] NSWCA 183 at [75]–[76]; Jeffrey and
Curnow v Giles; Giles v Jeffrey and Curnow [2015] VSCA 70 at [26]–[27].

[page 606]

23.119 Damages for any non-economic loss are capped under the
defamation legislation. The maximum amount is revised each year on 1 July
and this is published in the Gazette. The statutory cap applies even if there are
multiple causes of action: Davis v Nationwide News Pty Ltd [2008] NSWSC
693. See also Dank v Whittaker [2014] NSWSC 732.
See Civil Law (Wrongs) Act 2002 (ACT) s 139F; Defamation Act 2005
(NSW) 35; Defamation Act 2006 (NT) s 32; Defamation Act 2005 (Qld) s 35;
Defamation Act 2005 (SA) s 33; Defamation Act 2005 (Tas) s 35; Defamation
Act 2005 (Vic) s 35; Defamation Act 2005 (WA) s 35.

23.120 Aggravated damages for personal distress A court may award

damages for non-economic loss in excess of the maximum amount allowed
for non-economic loss, if satisfied that the circumstances of the publication
warrant an award of aggravated damages: 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).
Aggravated damages are relevant is there is a ‘lack of bona fides in the
defendant’s conduct or it is improper or unjustifiable’: Triggell v Pheeney
(1951) 82 CLR 497 at 514.

23.121 Claims for aggravated damages must be particularly pleaded:

Singleton v John Fairfax & Sons Ltd [1983] 2 NSWLR 722. The award of
damages may take into account ‘the plaintiff ‘s injured feelings, including the
hurt, anxiety, loss of self-esteem, the sense of indignity and the sense of
outrage felt by the plaintiff’: Carson v John Fairfax & Sons Ltd (1993) 178 CLR
44 at 71; 113 ALR 577 at 597 (footnote omitted); Dingle v Associated
Newspapers Ltd [1964] AC 371; [1962] 3 WLR 229.

23.122 A court may take into account the distress caused to the plaintiff by
the litigation and any trial (Humphries v TWT Ltd (1993) 120 ALR 693 at
706), any lack of apology by the defendant and the defendant’s persistence in
arguing the defence of justification: Clark v Ainsworth (1996) 40 NSWLR 463
at 468. See also Duffy v Google Inc (No 2) [2015] SASC 206.

23.123 If a defendant persists with the defence of justification when it

cannot be justified in the circumstances, aggravated damages may be awarded
as the persistence may lead to an increase in the extent of publication or the
effect upon those to whom the defamatory material was published. In Coyne v
Citizen Finance Ltd (1991) 172 CLR 211; 99 ALR 252, Toohey J (Dawson and
McHugh JJ concurring) applying Triggell v Pheeney (1951) 82 CLR 497 at 514,
confirmed that persistence in a plea of justification may be relevant to the
amount of compensatory damages awarded.

23.124 In Australian Consolidated Press Pty Ltd v Ettingshausen (NSWCA,

Gleeson CJ, Kirby P and Clarke JA, 13 October 1993, unreported), the New
South Wales Court of Appeal held that the continued assertion that the
respondent had consented to the publication justified an award of aggravated
damages. Kirby P stated (at 21):

[page 607]

There is equally no doubt that Mr Ettingshausen was entitled to claim aggravated damages for
the repeated assertion, unproved, that he had given consent to the publication of the photograph
which he clearly had not. His case was constructed thus. A naked photograph showing the penis
of a well known figure would not normally be carried in an Australian publication without the
consent of that person. Therefore, ordinary reasonable readers of the appellant’s publication
 would infer, contrary to the fact, that Mr Ettingshausen had given his consent. From that, they
would infer that he was a person given to exposing (i.e, showing) his penis in public. The
evidence of Mr Ettingshausen (which was clearly accepted by the jury) disclosed him to be a
rather modest and private man with a discreet family life which he wished to keep to himself. As
it was put during evidence, his penis was something between him and his wife. A photograph
showing it was not to be published without his consent (although with his apparent consent) in
a popular magazine. Such a publication might titillate readers. It might promote the appellant’s
profits. But it humiliated and embarrassed Mr Ettingshausen and damaged his reputation.

In Manefield v Association of Quality Child Care Centres of NSW (t/as

Child Care NSW) [2010] NSWSC 1420 at [198], the court stated:
To justify an award of aggravated damages, the aggravating conduct of the defendant must be
improper, unjustifiable, or lacking in bona fides (Triggell v Pheeney (1951) 82 CLR 497). Such
conduct justifies an increase in the damages awarded. The damages are compensatory in nature.
The misconduct must have caused additional harm to the plaintiff. Sometimes the harm will be
in the nature of an increase in the emotional distress caused to the plaintiff by the publication. It
may, in addition, enlarge the reputational damage suffered.

See also Forrest v Chlanda [2012] NTSC 14, where the court took note of the fact that the
defendant refused to withdraw the publication from the website; a second article did not
amount to an apology but was a ‘grudging admission’ that they had made a mistake and they
published their defence to the proceedings on the website claiming there would be further
evidence of the plaintiff’s fraud. This continuing conduct aggravated the plaintiff’s damage.

23.125 A corporation permitted by the defamation legislation to sue in

defamation (an excluded corporation: see 22.84) cannot be awarded
aggravated damages: Australian Broadcasting Corporation v Comalco Ltd
(1986) 68 ALR 259 at 333: Lewis v Daily Telegraph Ltd [1964] AC 234 at 262
per Lord Reid.

23.126 Reputation It is assumed by the law that upon the publication of

defamatory matter, the plaintiff ‘s reputation is injured: Uren v John Fairfax &
Sons Pty Ltd (1966) 117 CLR 118 at 150; Reader’s Digest Services Pty Ltd v
Lamb (1982) 150 CLR; 38 ALR 417. Therefore, it is not necessary for the
plaintiff to provide evidence of their good reputation; however, evidence may
be provided, especially if there is a particularly adverse effect in a particular
group of society: Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports
¶80-691; Wishart v Mirror Newspapers Ltd [1964] NSWR 231; Reader’s
Digest Services Pty Ltd v Lamb (1982) 150 CLR 500; 38 ALR 417 (impact of
defamation upon respondent’s reputation among journalists); Manefield v
Association of Quality Child Care Centres of NSW (t/as Child Care NSW)
[2010] NSWSC 1420 (publication to 650 members of an association in the
child care industry in which the appellant worked).

[page 608]

23.127 Although the presumption that a plaintiff ‘s reputation is damaged

cannot be rebutted (Bristow v Adams [2010] NSWCA 166 at [29]), evidence
of a plaintiff ‘s bad reputation is admissible in the mitigation of damages: see
23.134.

23.128 Vindication Assessing damages to vindicate a plaintiff ‘s

reputation requires a monetary value to be placed on the plaintiff ‘s
reputation. In Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; 201
ALR 184 at [69], Hayne J stated:
Two of the three purposes served by an award of damages for defamation are to provide
consolation to the person defamed for the personal distress and hurt which has been done, and
reparation for the harm done to that person’s reputation. Necessarily, then, the amount awarded
for defamation should reflect the effect which the particular defamation had on the individual
plaintiff. It follows that the drawing of direct comparisons between particular cases is apt to
mislead, just as the drawing of direct comparisons in personal injury cases can also mislead.
Comparison assumes that there is sufficient identity between the effect which each defamation
had on the particular plaintiff, whereas in fact circumstances alter cases. The amount allowed in
each case should reflect the subjective effect of the defamation on the plaintiff (Australian Iron
and Steel Ltd v Greenwood (1962) 107 CLR 308 at 325).

23.129 The extent of the publication of the defamatory material will be

relevant to the assessment. In McLean v David Syme & Co Ltd (1970) 92 WN
(NSW) 611, it was taken into account that the newspaper article had been
published in Victoria but also circulated in New South Wales. An early
withdrawal of the defamatory statement will ordinarily serve to reduce the
harm suffered by the plaintiff; but persistence in seeking to justify the
statement may increase the scope of publication and the effect on those who
read it.

Economic loss
23.130 If the defamation has caused any pecuniary loss to the plaintiff,
such loss may be compensated if the loss is the direct and natural
consequence of the defamation. Examples of possible claims include:
costs incurred by the plaintiff to minimise the damage caused by the defamation (Australian
Broadcasting Corporation v Comalco Ltd (1986) 68 ALR 259);

loss of business (Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225; Sydney Refractive
Eye Surgery Centre Pty Ltd v Beaumont [2004] NSWSC 164); and

injury to health: Mirror Newspapers Ltd v Jools (1985) 65 ALR 174 (court allowed damages for
psychiatric treatment as plaintiff suffered depression as a result of the publication).

Mitigation
23.131 Under the common law a defendant may adduce evidence to
mitigate their damages. This may include evidence of an apology and the
plaintiff’s general bad reputation.

23.132 Apology If the defendant publishes an apology or correction, this

is characterised as going towards repairing the plaintiff’s reputation: Turner v
News Group Newspapers Ltd [2006] 1 WLR 3469. If a defendant seeks to
mitigate their damages by an apology, it must

[page 609]

be of the same prominence as the defamatory matter: Fairbairn v John Fairfax

& Sons Ltd (1977) 21 ACTR 1. See also Lemaire v Smith’s Newspaper Ltd
(1927) 28 SR (NSW) 161; Bodenstein v Hope Street Urban Compassion [2014]
NSWDC 126.

23.133 The defamation legislation provides that an apology is not

evidence of an admission of liability in proceedings: Civil Law (Wrongs) Act
2002 (ACT) s 132; Defamation Act 2005 (NSW) s 20; Defamation Act 2006
(NT) s 19; Defamation Act 2005 (Qld) s 20; Defamation Act 2005 (SA) s 20;
Defamation Act 2005 (Tas) s 20; Defamation Act 2005 (Vic) s 20; Defamation
Act 2005 (WA) s 20.

23.134 Plaintiff’s reputation If the plaintiff is claiming non-economic

loss for injury to reputation, the defendant may give evidence of the plaintiff’s
general lack of good reputation (something that is presumed by the law) in
mitigation of damages. In Hobbs v Tinling [1929] 1 KB 1 at 17, Lord Scrutton
stated:
… a defendant may reduce the damages for libel by proving that the plaintiff had already a bad
reputation. To do this the jury must take the view that his reputation is so bad that the
defamatory statement complained of would reasonably and ordinarily cause much less damage
than would be caused to a man of good reputation by the same statement. They may conceivably
take the view that his reputation was so bad before the defamatory statement was published that
no further defamatory allegation could make it worse. But they would have to consider, before
taking such a view, the undoubted fact that the worse a man’s character is the more ready are
people to believe such reports about him, and to face the question whether it is lawful or
desirable that because a man’s character is bad any one should be at liberty to make any
defamatory statements they liked about him, regardless of their untruth.

In O’Hagan v Nationwide News Pty Ltd (2001) 53 NSWLR 89, the

imputation conveyed in the defamatory newspaper article was that the
plaintiff, a detective senior sergeant, had arranged to have someone murdered
for $10,000. The plaintiff’s case was conducted on the basis of good
reputation as a police officer. The defendant argued that the plaintiff’s
reputation was such that he had no reputation to lose. The evidence relied
upon by the defendant was that the plaintiff had pleaded guilty to charges of
misconduct. The evidence was held to be relevant as it related to the plaintiff’s
conduct as a police officer. See also Plato Films v Speidel [1961] AC 1090;
Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232.

23.135 To argue that there is little or no damage to the plaintiff’s

reputation due to their existing bad reputation, the defamatory matter must
be referable to that aspect of the plaintiff’s reputation and have spread
knowledge of that bad reputation. As explained in Morosi v Mirror
Newspapers Ltd [1977] 2 NSWLR 749 at 800–1:
If the respondent’s reputation were one of the relevant circumstances of the publication …, the
learned trial judge would have been entitled to direct the jury that they could consider whether
the respondent was likely to suffer harm by the spreading of knowledge of her bad reputation,
and also that, although she had a bad reputation, that bad reputation was not to be regarded as
covering all aspects of her character, and that a reputation for promiscuity is different from a
reputation for dishonesty.

See also Hobbs v CT Tinling & Co Ltd [1929] 2 KB 1 at 46, where Greer LJ
stated:

[page 610]

… a man with a damaged character is entitled to have his damaged character protected, and if
newspapers for their own purposes falsely allege that he has been guilty of crimes and
misconduct the jury might well consider that even a man of bad character ought not to have his
character made out to be blacker than the proved facts warrant.

23.136 Court rules in many of the Australian jurisdictions establish rules

as to giving evidence of a plaintiff’s character: Uniform Civil Procedure Rules
2005 (NSW) Pt 15 r 21(2); Supreme Court Rules (NT) O 40.10; Supreme
Court Rules (SA) O 78.03; Supreme Court Rules (Vic) O 40 r 10; Supreme
Court Rules (WA) O 34 r 6.

23.137 Defamation legislation As under the common law, the

defamation legislation allows evidence in mitigation damages. The legislation
provides:
 (1) Evidence is admissible on behalf of the defendant, in mitigation of damages for the
publication of defamatory matter, that —
(a) the defendant has made an apology to the plaintiff about the publication of the
defamatory matter; or
(b) the defendant has published a correction of the defamatory matter; or
(c) the plaintiff has already recovered damages for defamation in relation to any other
publication of matter having the same meaning or effect as the defamatory matter; or
(d) the plaintiff has brought proceedings for damages for defamation in relation to any
other publication of matter having the same meaning or effect as the defamatory
matter; or
(e) the plaintiff has received or agreed to receive compensation for defamation in relation
to any other publication of matter having the same meaning or effect as the
defamatory matter.
(2) Nothing in subsection (1) operates to limit the matters that can be taken into account by a
court in mitigation of damages.

See Civil Law (Wrongs) Act 2002 (ACT) s 139I; Defamation Act 2005
(NSW) s 38; Defamation Act 2006 (NT) s 35; Defamation Act 2005 (Qld) s
38; Defamation Act 2005 (SA) s 36; Defamation Act 2005 (Tas) s 38;
Defamation Act 2005 (Vic) s 38; Defamation Act 2005 (WA) s 38.

Appeal of damages awarded

23.138 Before the defamation legislation, juries determined the amount of
damages to be awarded as guided by the judge. Courts were reluctant to
overturn an assessment of damages by a jury on appeal unless the decision
was perverse, extreme or unreasonable: Cairns v John Fairfax & Sons Ltd
[1983] 2 NSWLR 708; Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327;
201 ALR 184. In Coyne v Citizen Finance Ltd (1991) 172 CLR 211 at 215–16;
99 ALR 252 at 254, Mason CJ and Deane J held:
In such cases, the question for the appellate court is whether the amount awarded is so high or
so low that it is outside the range of what could reasonably be regarded as appropriate to the
circumstances of the case. If the appellate court is of the view that that question should be
answered in the affirmative, there can be no question of reluctance to intervene. The proper
performance
 [page 611]

by the appellate court of the functions entrusted to it will require that it intervene to prevent
miscarriage of justice. It is true that the somewhat unprincipled common law rules relating to
the nature and limits of defamation damages may, in cases in those jurisdictions where
exemplary or punitive damages are still available, make the task of the appellate court in
reviewing a jury’s award an unusually difficult one. The reason for the difficulty is that the
interaction of sometimes competing notions of compensation, vindication, retribution and even
deterrence may give rise to a wide variety of possible components of the jury’s overall award.
Even in such cases, the inability to identify specific components will not absolve the appellate
court of the responsibility of determining whether the overall award is within the limits of what
could reasonably be regarded as appropriate in the circumstances of the particular case.
However, the present case involved no such extraordinary difficulty since, as will be seen, the
jury were required to determine only the appropriate amount of damages to compensate the
plaintiff for the injury to his reputation.

23.139 In Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; 201 ALR
184, the appellant was defamed in an article published by the respondent on
the front page of its newspaper. The article reported a Federal Court decision
that held that the interest awarded as part of the damages in a medical
negligence case, Rogers v Whitaker (1992) 175 CLR 479; 109 ALR 625, was to
be assessed as income. The article stated that the recipient of the damages had
been ‘blinded by a surgeon’s negligence’. The appellant, who was the surgeon,
was awarded $250,000 in damages by the trial judge but, on appeal to the New
South Wales Court of Appeal, it was held that the award was manifestly
excessive. The appellant appealed to the High Court.
The High Court allowed the appeal, holding that the Court of Appeal had
no convincing reasons for finding that the award of damages of $250,000 was
manifestly excessive. Hayne J held (at [80]):
It was open to the trial judge to conclude that the respondent’s defamation of the appellant had
a serious effect upon him. He had already suffered the inevitable emotional cost of the trial and
appeals in the proceedings brought against him by Mrs Whitaker. That action had culminated in
his being held to have been negligent in not advising Mrs Whitaker of the risks associated with
the procedure he advised her to undergo. Yet through that litigation his skill as a surgeon
emerged unchallenged. Now, some years after that chapter of his professional life appeared to
have been closed, the respondent published words which conveyed the imputation that he had
 conducted the surgery on Mrs Whitaker without reasonable care. It was well open to the trial
judge to conclude that the effect of that publication on this appellant was very large. An award of
$250,000 in those circumstances was not outside the range of damages that could properly be
awarded.

In Cerutti v Crestside Pty Ltd [2014] QCA 33 at [55], after noting the
advantages a trial judge possesses over an appellate court in assessing the
evidence of a plaintiff’s hurt feelings, Applegarth J stated:
Manifestly inadequate or manifestly excessive awards undermine the interests protected by the
law of defamation. Inadequate awards place too small a value on reputation and other interests
that the law of defamation protects. The level of damages should reflect the high value the law
places upon reputation and, in particular, upon the reputation of those whose work and life
depend upon their honesty and integrity (Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at
[74]) Very low awards of damages may provide an inadequate incentive for a wronged plaintiff

[page 612]

to take on the risks and costs of potentially complex and protracted litigation. They may not
deter careless, reckless or malicious communications which harm individuals and businesses.
Excessive awards of damages have the potential to act as a brake on freedom of speech and
encourage unnecessary self-censorship, notwithstanding the availability of defences designed to
protect legitimate communications made without malice.

23.140 The court determines the damages to be awarded, even if the

plaintiff or defendant has elected for the proceedings to be tried by jury in
those jurisdictions that allow trial by jury: Defamation Act 2005 (NSW) s
22(3); Defamation Act 2005 (Qld) s 22(3); Defamation Act 2005 (Tas) s 22(3);
Defamation Act 2005 (Vic) s 22(3); Defamation Act 2005 (WA) s 22(3).
However, a decision as to the amount of damages awarded for defamation
may still be appealed. For the appeal to be successful, the Appeal Court has to
find that the overturning of the assessment is required in order to avoid a
miscarriage of justice: Coyne v Citizen Finance Ltd (1991) 172 CLR 211 at 215;
99 ALR 252 at 254.
 Further Reading
R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis
Butterworths, Sydney, 2013, Ch 19.
P George, Defamation Law in Australia, 2nd ed, LexisNexis
Butterworths, Sydney, 2012.
[page 613]
 Chapter 24

Interference with Business Interests

1 Introduction
24.1 A number of torts are available to prevent interference with business
and trading interests, for example deceit (see Chapter 19) and actions for loss
of services: see Chapter 17. In this chapter, the following torts, often referred
to as the ‘economic torts’, are considered:
passing off;
interference with contractual relations;
conspiracy;
intimidation; and
injurious falsehood.

24.2 It has also been suggested that there may be a single, more general,
tort of unlawful interference with trade or business interests.1 In Ansett
Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots
[1991] 1 VR 637; (1989) 95 ALR 211, Brooking J stated that it was not his
place as a judge sitting at first instance to consider whether a tort of unlawful
interference with trade or business existed and that it was a matter for the
High Court to determine: at VR 667–7; ALR 244. In Northern Territory v
Mengel (1995) 185 CLR 307 at 342–3; 129 ALR 1 at 15, the joint judgment of
Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ noted:
More recent developments in the United Kingdom suggest the emergence in that country of a
tort of interference with trade or business interests by an unlawful act directed at the person
injured, although not necessarily done for the purpose of injuring his or her interests. It seems
 to be accepted that this embryonic or emerging tort does not extend to all unlawful acts and
that, at least in that regard, it is in need of further definition. [footnotes omitted]

24.3 However, the High Court has not yet recognised the tort in Australia.
For example, in Sanders v Snell (1998) 196 CLR 329; 157 ALR 491 at [30], the
court stated that it was not ‘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 tort has been recognised in the United Kingdom
in the decision of OBG Ltd v Allan [2008] 1 AC 1; [2007] 4 All ER 545.

[page 614]

24.4 Since the decision of Sanders v Snell (1998) 196 CLR 329; 157 ALR
491, the ‘emerging’ tort has been raised in Australia, but the lower courts have
declined to take the step to recognise the tort: Qantas Airways Ltd v Transport
Workers’ Union of Australia (2011) 280 ALR 503 at [425]–[430]; Deepcliffe
Pty Ltd v Council of the City of Gold Coast (2001) 118 LGERA 117; Scott v
Pedler (2003) 74 ALD 424; [2003] FCA 650 at [78] (affirmed Scott v Pedler
(2004) 80 ALD 283; [2004] FCAFC 67 at [71]).

24.5 However, in Canberra Data Centres Pty Ltd v Vibe Constructions

(ACT) Pty Ltd (2010) 173 ACTR 33 at [140], Refshauge J stated:
Despite the reserve expressed by the High Court [in Sanders v Snell], I do not consider that on
an application such as this, I should prevent [the plaintiff] from arguing its case that such a tort
does exist in Australia. There are, indeed, strong statements in Australian courts recognising it.
It was accepted by Brooking J in Ansett Transport Industries (Operations) Pty Ltd v Australian
Federation of Air Pilots [1991] 1 VR 637; (1989) 95 ALR 211 (at VR 667–8; ALR 254–5), relying
in part on what McLelland J said in Copyright Agency Ltd v Haines [1982] 1 NSWLR 182; 40
ALR 264 (at NSWLR 193–4; ALR 273–4) and Else-Mitchell J in Sid Ross Agency Pty Ltd v Actors
and Announcers Equity Assn [1970] 2 NSWR 47 (at 52). All these cases were, of course, decided
before Sanders. Indeed, Brooking J observed, “[w]hat the law is in Australia on this subject must
await the authoritative determination of the High Court, but my duty is to apply the law as laid
down by the House of Lords”. That may now have changed since the High Court has begun to
address the matter, but not by refusing to recognise such a claim.
 His Honour held that the pleadings should be in accordance with the
principles as stated by the House of Lords in OBG Ltd v Allan [2008] 1 AC 1;
[2007] 4 All ER 545, which in the case before him were not. However, see the
cautious reasons outlined in Hardie Finance Corporation Pty Ltd v Ahern (No
3) [2010] WASC 403 at [705]–[719], as to whether to apply the decision of
OBG Ltd v Allan. In that case, Pritchard J concluded (at [720]):
Despite the force of the concerns to which I have referred above in relation to the recognition in
Australia of the unlawful means tort, as explained in OBG, I am persuaded that the unlawful
means tort should now be accepted as part of the Australian common law.

Despite this, no superior court has recognised the tort, and more recent
statements indicate that the tort is not part of Australian law: see Donaldson v
Natural Springs Australia Ltd [2015] FCA 498 at [213].

2 Passing Off
24.6 Passing off is the closest nominate tort to the more general basis of
tort liability known, in some overseas jurisdictions, as ‘unfair competition’.2
The tort involves one person passing off its goods or services as being, or as
being associated with, those of another: Willard King Organisation Pty Ltd v
United Telecasters Sydney Ltd [1981] 2 NSWLR 547;

[page 615]

Knight v Beyond Properties Pty Ltd (2007) 71 IPR 466 at [15]. Passing off may
also be regarded as a special class of misrepresentation (A G Spalding & Bros v
A W Gamage Ltd (1915) 84 LJ Ch 449; (1918) 35 RPC 101) and is related to
the tort of deceit: Willard King Organisation Pty Ltd v United Telecasters
Sydney Ltd. The tort of passing off is the inverse of the tort of injurious
falsehood in that, while the latter involves a denigration of the plaintiff’s
goods, the former involves the defendant usurping the reputation and
goodwill associated with the plaintiff’s goods.

24.7 In Reckitt & Colman Products Ltd v Borden Inc [1990] 1 WLR 491 at
499; 1 All ER 873 at 880, Lord Oliver said:
The law of passing off can be summarised in one short general proposition — no man may pass
off his goods as those of another. More specifically, it may be expressed in terms of the elements
which the plaintiff in such an action has to prove in order to succeed. These are three in
number. First, he must establish a goodwill or reputation attached to the goods or services
which he supplies in the mind of the purchasing public by association with the identifying ‘get-
up’ (whether it consists simply of a brand name or a trade description, or the individual features
of labelling or packaging) under which his particular goods or services are offered to the public,
such that the get-up is recognised by the public as distinctive specifically of the plaintiff’s goods
or services. Second, he must demonstrate a misrepresentation by the defendant to the public
(whether or not intentional) leading or likely to lead the public to believe that goods or services
offered by him are the goods or services of the plaintiff. Whether the public is aware of the
plaintiff’s identity as the manufacturer or supplier of the goods or services is immaterial, as long
as they are identified with a particular source which is in fact the plaintiff. For example, if the
public is accustomed to rely upon a particular brand name in purchasing goods of a particular
description, it matters not at all that there is little or no public awareness of the identity of the
proprietor of the brand name. Third, he must demonstrate that he suffers or, in a quia timet
action, that he is likely to suffer damage by reason of the erroneous belief engendered by the
defendant’s misrepresentation that the source of the defendant’s goods or services is the same as
the source of those offered by the plaintiff.

See also Erven Warnink BV v J Townend & Sons (Hull) Ltd [1979] AC 731
at 742. In ConAgra Inc v McCain Foods (Aust) Pty Ltd (1992) 33 FCR 302 at
340; 106 ALR 465 at 502, the Federal Court of Australia explained the tort:
On examination of the relevant authorities it becomes clear that the basis of the cause of action
lies squarely in misrepresentation, for its underlying rationale is to prevent commercial
dishonesty. The tort of passing off protects the business of the plaintiff with its many facets: its
assets, goodwill and reputation. It stops persons and companies gaining a commercial advantage
through wrongfully taking the attributes of another’s business if it causes or is likely to cause
that other person’s business some damage.

24.8 To establish an action in tort for passing off, a plaintiff must establish:
that they have a reputation that may be protected;
the defendant made a false representation that was calculated to
 deceive; and
damage: Reckitt & Colman Products Ltd v Borden Inc [1990] 1 WLR
491; 1 All ER 873; Vieright Pty Ltd v Myer Stores Ltd (1995) 31 IPR 361
at 369.

[page 616]

Reputation
24.9 The tort of passing off protects the reputation or goodwill of the
plaintiff’s business, reputation and goodwill being synonymous in Australia:
ConAgra Inc v McCain Foods (Aust) Pty Ltd (1992) 33 FCR 302; 106 ALR 465.
In Hansen Beverage Co v Bickfords (Australia) Pty Ltd (2008) 251 ALR 1 at
[35], the Full Federal Court stated:
The tort of passing off is designed to protect the property and goodwill of a business. It is only
available where an applicant can show goodwill or reputation in relation to the name or get-up
of his or her goods or services because they have become distinctive of his goods or services in a
particular market. An applicant will succeed where he or she can show that a potential customer
is likely to be misled into believing that the respondents’ goods are goods of the applicant or are
somehow associated with the applicant: see Cadbury-Schweppes Pty Ltd v Pub Squash Co Pty Ltd
(1980) 32 ALR 387 at 393.

See also Orange Crush (Australia) Ltd v Gartrell (1928) 41 CLR 282 at 292.

24.10 The plaintiff must prove that it has a reputation within the
jurisdiction in which the alleged passing off takes place: ConAgra Inc v
McCain Foods (Aust) Pty Ltd (1992) 33 FCR 302; 106 ALR 465. This may be
established, for example, through evidence of the history of the product, its
marketing and volume of sales if relevant. However, it is not necessary that
the plaintiff have a place of business in the jurisdiction, as ‘[i]t is sufficient if
his goods have a reputation in this country among persons here, whether
residents or otherwise, of a sufficient degree to establish that there is a
likelihood of deception among consumers and potential consumers and of
damage to his reputation’: ConAgra Inc v McCain Foods (Aust) Pty Ltd (1992)
33 FCR 302 at 344; 106 ALR 465 at 506.
In Hansen Beverage Co v Bickfords (Australia) Pty Ltd (2008) 251 ALR 1,
although the appellant’s product was not sold in Australia, it established that
it was using indirect advertising to create a presence in Australia through
sponsorship and logos on clothing. Finkelstein J stated (at [63]–[64]):
There are a plethora of examples of indirect advertising and it is a key topic of discussion in
advertising literature. Indirect advertising of the kind with which everyone is familiar is the
sponsorship of sports. Many people in many countries place great value upon entertainment,
competition and accomplishment, all of which are seen in the sporting arena. Brand names and
logos appear around sporting arenas, on the clothing worn by sportsmen and women and on the
equipment sportsmen and women use. This form of advertising is seen by many thousands of
fans who attend sporting events and, in the case of popular sports, by hundreds of thousands of
people if the event is broadcast on television. There are numerous studies that show that this
type of indirect advertisement is far more effective at eliciting a consumer recall response than a
direct television commercial.

In my opinion the judge was entitled to infer that the indirect brand advertising employed by
Hansen (and, for that matter, Bickfords) can establish reputation as well as, if not better than,
direct advertising. After all, everyone knows that James Bond drives an Aston Martin, Janis
Joplin wanted to own a Mercedes Benz and Audrey Hepburn had breakfast at Tiffany’s.

In Knott Investments Pty Ltd v Winnebago Industries Inc (2013) 211 FCR
449; (2013) 299 ALR 74, the court held that although the Winnebago was not
sold in Australia, Australian

[page 617]

tourists using recreational vehicles in the United States and the United
Kingdom where it was sold, and people in the industry, would have been
aware of Winnebago. This was sufficient, in the view of the Full Federal
Court, to establish a reputation of Winnebago in Australia: at [38].
It is not necessary that the consumers know the name of the plaintiff’s
business or goods as long as it can be proven that the business or goods
possess a distinctive reputation: Deckers Outdoor Corporation Inc v Farley
(No 5) (2009) 262 ALR 53 at [39]. See also Hoath v Connect Internet Services
Pty Ltd (2006) 229 ALR 566 at [77].
The goodwill of a business may continue after the business has ceased
operation: Hoath v Connect Internet Services Pty Ltd.

False Representation Calculated to Deceive

Representation
24.11 The essential feature of a passing off action is a false representation
by the defendant that its goods are connected or associated with the plaintiff’s
business or goods: Henderson v Radio Corporation Pty Ltd [1969] RPC 218;
Royal Automobile Association of South Australia (Inc) v Hancock [1939] SASR
60; Rolls-Royce Motors Ltd v DIA (Engineering) Pty Ltd (1981) 50 FLR 340.

24.12 The representation may be conveyed in a variety of forms. The

action is not anchored to a trademark or trade name, but encompasses visual
images and slogans: Cadbury-Schweppes Pty Ltd v Pub Squash Co Pty Ltd
(1980) 32 ALR 387 (use of the colour purple). In Peter Bodum A/S v DKSH
Australia Pty Ltd (2011) 280 ALR 639, the appellant was successful in
establishing that its coffee plungers with their distinctive shape could be
protected in a passing off action. The court held that not only did the
appellant have a reputation attached to the name, Bodum, it had a secondary
reputation attached to the shape of its coffee plungers.

24.13 The plaintiff and defendant need not share a common field of
activity, that is, they need not be rivals in trade or business: Henderson v
Radio Corporation Pty Ltd [1969] RPC 218; Hutchence v South Sea Bubble Co
Pty Ltd (1986) 64 ALR 330. In Irvine v Talksport Ltd [2002] 2 All ER 414; 1
WLR 2355, the plaintiff’s image was used without authorisation by the
defendant to advertise its broadcast of the Formula One Grand Prix World
Championship. The plaintiff was a well-known racing car driver. The court
held that it was not necessary in an action of passing off that the parties
shared a common field or that sales would be diminished. The plaintiff had a
substantial reputation and the use of his image would lead to the assumption
that he was endorsing the defendant’s coverage of the Championship.
See also Campomar Sociedad, Limitada v Nike International Ltd (2000) 169
ALR 677 (marketing of fragrance in Australia called ‘Nike Sport Fragrance’ by
Spanish cosmetic and toiletries corporation).

Intention
24.14 Although the phrase ‘calculated to deceive’ implies that there must
be an intent on the part of the defendant to create an association with the
plaintiff’s goods or business, no such intention is required: Millington v Fox
(1838) 3 My & Cr 338; 40 ER 956; A G Spalding

[page 618]

& Bros v A W Gamage Ltd (1915) 84 LJ Ch 449; (1918) 35 RPC 101; ConAgra
Inc v McCain Foods (Aust) Pty Ltd (1992) 33 FCR 302; 106 ALR 465;
Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR
354; [2002] FCAFC 157 at [62]; Complete Technology Integrations Pty Ltd v
Green Energy Management Solutions Pty Ltd [2011] FCA 1319 at [67]. In
Peter Bodum A/S v DKSH Australia Pty Ltd (2011) 280 ALR 639 at [213], it
was noted:
… there is no requirement that there be an actual, subjective intention to mislead. Nevertheless,
proof of deliberate borrowing of the features or get-up of a rival’s product provides “evidential
value” as discussed in Australian Woollen Mills Ltd v FS Walton & Co Ltd (1937) 58 CLR 641 …
by Dixon and McTiernan JJ in the well known passage at 657 which, in part, is in these terms:
The rule that if a mark or get-up for goods is adopted for the purpose of appropriating
part of the trade or reputation of a rival, it should be presumed to be fitted for the
purpose and therefore likely to deceive or confuse, no doubt, is as just in principle as it is
wholesome in tendency. In a question how possible or prospective buyers will be
impressed by a given picture, word or appearance, the instinct and judgment of traders is
not to be likely rejected …
 It has been held that if a subjective intention to deceive is established, in
borderline cases, such intention will be evidence that the consumer was
deceived or misled: see Australian Woollen Mills Ltd v FS Walton & Co Ltd
(1937) 58 CLR 641 at 657. The intent or lack of intent of the defendant will be
relevant when considering remedies for the passing off (see 24.28).

24.15 It is sufficient if the deception is the reasonably foreseeable

consequence of the representation: Erven Warnink BV v J Townend & Sons
(Hull) Ltd [1979] AC 731 at 742.

Deceived
24.16 The plaintiff must prove that the defendant’s false representation
has led consumers to believe that the goods are those of the plaintiff or are
connected with the plaintiff. An objective test is adopted; the question is the
understanding of a reasonable member of the class of the relevant consumers:
Campomar Sociedad, Limitada v Nike International Ltd (2000) 202 CLR 45;
169 ALR 677 at [105].

24.17 Mere confusion or uncertainty is not sufficient. In Knight v Beyond

Properties Pty Ltd (2007) 242 ALR 586, the appellant was the author of three
books, in which a group of people who investigated the paranormal called
themselves ‘Mythbusters’. The respondent produced a television series called
‘Mythbusters’ in which science experiments were used to explore common
misconceptions and myths. The appellant alleged that the use of the name
‘Mythbusters’ wrongly suggested that the series was associated with his books
and his own plan to develop a television series based on his books. The court
agreed with the trial judge, that a reasonable person may think that the
television series is connected to the books, but watching the series would
dispel any confusion. The court held (at [60]):
The distinction between confusion or self-generated misapprehension is an important one,
because, without more, mere confusion or misapprehension does not suffice to … supply the
essential ingredient of the tort of passing off, because it is to be regarded as commercially
 irrelevant or insignificant: see [ConAgra Inc v McCain Foods (Aust) Pty Ltd (1992) 33 FCR 302
at 381; 106 ALR 465 at 534 per French J and Lumley Life Ltd v IOOF of Victoria Friendly Society
(1990) 16 IPR 316 at 324 per Lockhart J].

[page 619]

24.18 The passing off must have been calculated to deceive the public or a
substantial section of the public, such as potential purchasers: Bollinger v
Costa Brava Wine Co Ltd (No 2) [1961] 1 WLR 277. It is not necessary to
show that anyone was actually misled: Peter Bodum A/S v DKSH Australia Pty
Ltd (2011) 280 ALR 639 at [214]; Nutrientwater Pty Ltd v Baco Pty Ltd (2010)
265 ALR 140 at [78]–[83].

24.19 The test is the likely impression on the casual and unwary customer
of the goods in question: Bollinger v Costa Brava Wine Co Ltd; Singer
Manufacturing Co v Loog (1882) 8 App Cas 15; Plomien Fuel Economiser Co
Ltd v National School of Salesmanship Ltd (1943) 60 RPC 209. In Hansen
Beverage Co v Bickfords (Australia) Pty Ltd (2008) 251 ALR 1, one of the
issues was whether a substantial or significant portion of persons within the
target market had been misled. In that case, the target market was males
between the ages of 18 and 30 involved in extreme sports, a narrower field
than the relevant market, that is, young males: at [59].

Damage
24.20 As the plaintiff must establish that they had a reputation and that
there was a false representation, it is presumed that there is resulting damage.
The damage that results from the tort may be in a variety of forms. For
example, the damage may be a decrease in sales, a lost opportunity or it may
be the damage to the plaintiff’s business reputation. There must be a
likelihood of the plaintiff’s business being adversely affected by the
defendant’s passing off of the goods or services as its own: Childrens
Television Workshop Inc v Woolworths (NSW) Ltd [1981] 1 NSWLR 273.
In Deckers Outdoor Corporation Inc v Farley (No 5) (2009) 262 ALR 53, the
respondents were involved in the manufacture and marketing of counterfeit
‘Ugg Australia’ boots. Tracey J stated (at [57]):
The third element needed to make out the tort of passing-off is that an applicant must suffer
damage as a result of a respondent’s conduct. In the present case there can be no doubt that
damage has been inflicted on Deckers. That damage occurred as a result of loss of sales and the
undermining of the confidence of consumers in the Deckers products because of the poor
quality of the counterfeit footwear manufactured and distributed by [the respondent] and
others.

See also Talmax Pty Ltd v Telstra Corporation Ltd [1997] 2 Qd R 444 at
451, where it was held that the damage from the unauthorised use of a
celebrity’s image (see 24.25) ‘diminished the opportunity to commercially
exploit his name, image and reputation’.

Examples of Passing Off

24.21 In Cadbury-Schweppes Pty Ltd v Pub Squash Co Pty Ltd (1980) 32
ALR 387 at 393, it was stated:
The width of the principle now authoritatively recognised by the High Court of Australia and
the House of Lords is, therefore, such that the tort is no longer anchored, as in its early
nineteenth century formulation, to the name or trade mark of a product or business. It is wide
enough to encompass other descriptive material, such as slogans or visual images, which radio,
television or newspaper advertising campaigns can lead the market to associate with a plaintiff’s
product, provided always that such descriptive material has become part of the goodwill of the
product. And the test is whether the product has derived from the advertising a distinctive
character which the market recognises.

[page 620]

Representation that defendant’s goods are associated with the

plaintiff
24.22 This usually involves a claim by a vendor that the goods are actually
made by the plaintiff or are associated with the plaintiff’s goods:
Lord Byron v Johnston (1816) 2 Mer 29; 35 ER 851 — Lord Byron’s
name attributed to a bad poem;
Illustrated Newspapers Ltd v Publicity Services (London) Ltd [1938] 1
Ch 414 — the defendants inserted supplement of advertising material
into plaintiff’s magazines without consent;
Bollinger v Costa Brava Wine Co Ltd (No 2) [1961] 1 WLR 277 —
Spanish champagne;
Twentieth Century Fox Film Corporation v South Australian Brewing
Co Ltd (1996) 34 IPR 225 — Australian breweries manufactured and
sold ‘Duff Beer’ to make use of the goodwill associated with the
television series The Simpsons (see 24.27); and
Deckers Outdoor Corporation Inc v Farley (No 5) (2009) 262 ALR 53 —
counterfeit Ugg boots called ‘Ugg Australia’.

Defendant markets goods with similar or same name

24.23 If the defendant’s goods or business have the same or a similar
name, it is arguable that this will mislead the consumer if the parties are in the
same field:
ConAgra Inc v McCain Foods (Aust) Pty Ltd (1992) 33 FCR 302; 106
ALR 465 — the respondent manufactured and sold frozen meals in
Australia using same name, ‘Healthy Choice’, as appellant did in the
United States;
Targetts Pty Ltd v Target Australia Pty Ltd (1993) 26 IPR 51 — the
respondent opened store in Launceston called ‘Target’ and appellant
had operated clothing and shoe business called ‘Targetts’ for many
years in that city;
Hansen Beverage Co v Bickfords (Australia) Pty Ltd (2008) 251 ALR 1
— the respondent manufactured and sold energy drink called ‘Monster
 Energy’ in Australia and appellant sold ‘Monster Drink’ in the United
States;
Vieright Pty Ltd v Myer Stores Ltd (1995) 31 IPR 361 — the appellant
retailed women’s clothing under the ‘FIRST’ label and respondent
launched its label ‘First Menswear’;
Hannah Louis Group Pty Ltd t/as Maxum Transport v Maxum Taxi
Trucks Pty Ltd [2011] NSWSC 291 — plaintiff trading as ‘Maxum
Transport’, defendant trading as ‘Maxum Taxi Trucks’;
Madison Constructions Pty Ltd v Empire Building Group (ACT) Pty Ltd
[2012] FCA 381 — the appellant and respondent both property
developers. Respondent developed residential home unit project called
‘Madison Gardens’. Appellant’s business was named Madison
Construction Pty Ltd and had constructed a home unit complex called
‘Madison Square’ and other projects using the name or branding of
‘The Gardens’; and
Bob Jane Corp Pty Ltd v ACN 149 801 141 Pty Ltd (2013) 97 ACSR 127
— the applicant and respondent were both in tyre business. Applicant
used the name ‘Bob Jane’ in its business and the respondent also
adopted ‘Bob Jane’ and variations in its. By using

[page 621]

the marks, the respondent represented to the public that its goods and
services were those of the applicants.

Similar descriptive material

24.24 This includes the use of slogans or visual images which the plaintiff’s
advertising campaigns have led the market to associate with the plaintiff’s
product:
Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd
(2007) 159 FCR 397; 239 ALR 662 — the appellant claimed that the
respondent’s use of a shade of purple in connection with its chocolate
confectionary business would mislead consumers into thinking that
the respondent’s products were the appellant’s or there was a
connection between the two businesses. It was held that although the
colour purple was associated with the appellant’s products, the well-
known name of the company would prevent the public from being
misled.
Cadbury-Schweppes Pty Ltd v Pub Squash Co Pty Ltd (1980) 32 ALR
387 — the appellant manufactured and marketed a lemon drink, ‘Solo’,
aimed at the market of ‘rugged masculine adventurers’, and the
marketing campaign was to evoke memories of hotels and bars of the
past. The respondent started to manufacture and market a man’s
drink, ‘Pub Squash’, with a similar targeted audience and in cans the
same size and colour as the appellant’s product. The Privy Council
agreed with the trial judge’s decision that there was no passing off as
the intention of the respondent was not to pass off its product as the
appellant’s, but to take advantage of the appellant’s development of a
market for lemon squash drinks.
Reckitt & Colman Products Ltd v Borden Inc [1990] 1 WLR 491; [1990]
1 All ER 873 — the respondent had sold its product, concentrated
lemon juice, in a lemon-shaped yellow bottle in the United Kingdom
since 1956. The appellant, an American business, started selling its
lemon juice in the United Kingdom in regular bottles but then started
to sell the product in a lemon-shaped bottle. The House of Lords held
that the public identified not only that the lemon-shaped bottles
contained lemon juice, but also that it was the respondent’s product.
Fernwood Fitness Centre Pty Ltd v Today’s Woman Health and Fitness
Pty Ltd (1998) 41 IPR 78 — the applicant used the slogan ‘Today’s
Woman’ in relation to its female fitness centres. Respondent named its
fitness centre ‘Today’s Woman’ and had a similar logo, and the fittings
and fixtures of the centre were similar in colour scheme and design to
the applicant’s. It was held that the slogan was not used by the
applicant in any way to identify their business, but used to identify its
audience. The slogan, décor, fixtures and fittings were not distinctive
of the applicant’s business.
R & C Products Pty Ltd t/as Samuel Taylor v S C Johnson & Sons Pty
Ltd (1993) 113 ALR 487 — the applicant manufactured an insect
repellent, ‘Mortein’, with the slogan ‘When you are on to a good thing,
stick to it’ and had an advertising campaign featuring John Laws, a
well-known media personality. The respondent manufactured an
insect repellent, ‘Raid’, and threatened to advertise using John Laws
with the slogan ‘So when you find a better thing, switch to it’. The
court held that the adoption

[page 622]

of advertising concepts by the respondent would mislead a significant

number of the public as those advertising concepts were identified by
the public as related to the applicant’s product.
Coca Cola Co v PepsiCo Inc (No 2) (2014) 322 ALR 505; 109 IPR 429 —
the applicant and respondent manufactured and sold beverages. The
applicant sued in passing off, alleging that the respondent was
misleading consumers by using a similar shaped contour bottle. The
action failed as it was held that although some consumers may make
their purchase selection based on the shape of the bottle, there were
noticeable differences between the bottles, and a consumer would also
have regard to the word mark and other branding on the bottles. There
was no evidence that the bottle shape indicated to consumers the
origin of the beverage.
Celebrity endorsement and character merchandising
24.25 In Henderson v Radio Corporation Pty Ltd [1969] RPC 218, the
defendant producer and distributor of gramophone records manufactured
and sold a record of ballroom dance music and used a photograph of the
Hendersons, who were well-known professional ballroom dancers, for the
cover. The Full Court held (at 285):
… the wrongful appropriation of another’s professional or business reputation is an injury in
itself, no less, in our opinion, than the appropriation of his goods or money. The professional
recommendation of the respondents was and still is theirs, to withhold or bestow at will, but the
appellant has wrongfully deprived them of their right to do so and of the payment or reward on
which, if they had been minded to give their approval to the appellant’s record, they could have
insisted. In our opinion, it is idle to contend that this wrongful appropriation is not an injury to
the respondents. It is as much an injury as if the appellant had paid the respondents for their
recommendation and then robbed them of the money. That injury, and the acknowledged
intention to continue to inflict it, are ample justification for the injunction which was granted.

In Sony Music Australia Ltd v Tansing (t/as Apple House Music) (1993) 27
IPR 649 at 653–4, it was noted:
The right of publicity, as it is called, has been described as the inherent right of every human
being to control the commercial use of his or her identity … Certainly it has not been held to be
part of the law of Australia at this stage of this country’s development.

24.26 However, the tort of passing off has developed to protect a person
from having their name or image used in an unauthorised endorsement: see
comments of the High Court in Moorgate Tobacco Co Ltd v Philip Morris Ltd
(1984) 156 CLR 414 at 445; 56 ALR 193 at 214. In Talmax Pty Ltd v Telstra
Corporation Ltd [1997] 2 Qd R 444, an image of Kieren Perkins, a wellknown
sporting celebrity, and accompanying text about his achievements, were used
without consent in an advertisement supplement in a newspaper. At the time,
the respondent was seeking to advertise itself as the choice for long-distance
and international calls for telephone users in Australia. The Court of Appeal
held that ‘the publication misrepresented that Mr Perkins was sponsored by
[the respondent], had consented to its use of his name, image and reputation
in its advertising, and supported it in the forthcoming “pre-selection”
process’: at 451.
See also Pacific Dunlop Ltd v Hogan (1989) 87 ALR 14 (character dressed as
‘Mick Dundee’ from films held to be passing off); Honey v Australian Airlines
Ltd (1990) 18 IPR 185;

[page 623]

Wickham v Associated Pool Builders Pty Ltd (1988) 12 IPR 567. Note the
warning in 10th Cantanae Pty Ltd v Shoshana Pty Ltd (1987) 79 ALR 299 at
306:
… passing off is not necessarily constituted by the mere authorised use of someone’s name or
picture or the name or picture of a well-known fictitious character, in an advertisement.

In that case, the appellant’s advertisements depicted a woman watching a

television with a video recorder and the slogan ‘Sue Smith just took total
control of her video recorder’. The respondent was a media personality,
named Sue Smith. The court held that the reference to Sue Smith did not
mislead the public into thinking that the respondent endorsed the appellant’s
product. Wilcox J stated (at 303):
In the present case, there was nothing more than the bare name. The advertisement contained
no information pointing unequivocally to Ms Smith. There was no relevant context. The two
names “Sue” and “Smith” are common enough, whether considered separately or as a
combination. The only additional material was a picture of the “Sue Smith” referred to in the
advertisement. But, because it was a picture of a person dissimilar in appearance to the second
respondent, it pointed the other way.

Contrast the English decision of Fenty v Arcadia Group Brands Ltd t/as
Topshop [2015] 1 WLR 3291; All ER 157. The singer Rihanna’s image was
used without permission on a t-shirt sold by Topshop. The court held that
although just the use of the image was not a passing off, the fact that Topshop
had a previous well-advertised relationship with the singer (competitions and
a visit to Topshop by the singer), amounted to a representation that Rihanna
endorsed the sale of the t-shirts.

24.27 Character merchandising and passing off were considered in

Twentieth Century Fox Film Corporation v South Australian Brewing Co Ltd
(1996) 34 IPR 225. In that case, the opposition was to use of the name ‘Duff
Beer’, a fictional beer featured in the television series, The Simpsons. Although
consumers would not think that the producers of the series produced the
beer, they would believe that the respondent breweries had been sanctioned
or allowed to manufacture the ‘Duff Beer’. The evidence was that the
producers of The Simpsons always refused any licence in relation to alcohol or
other products that could be harmful to children. The court held that an
action in passing off had been established:
There has been a misrepresentation as to the association of the goods with “The Simpsons”,
made by breweries in the course of trade, to prospective customers or ultimate consumers. It is
reasonably foreseeable that the business or goodwill of “The Simpsons” and their licensing and
merchandising rights could be adversely affected, particularly in the light of the policy in
relation to alcohol promotion. If the product is permitted to be marketed it will probably cause
actual damage to the producers. There will be loss of licensing fees. …

I consider that the producers have made out their case in relation to passing off: at 246.

See also Childrens Television Workshop Inc v Woolworths (NSW) Ltd

[1981] 1 NSWLR 273 (inferior soft toys of characters of children’s television
show, Sesame Street).

Defences
24.28 It is a good defence that the plaintiff consented to the
misrepresentation or that the trade name alleged to have been passed off is
already commonly used: Liebig’s Extract of

[page 624]
Meat Co Ltd v Hanbury (1867) 17 LT (NS) 298. There is no action for passing
off if, instead of passing off goods as the plaintiff’s, the defendant claims an
attribute for his or her own goods which is, in fact, an attribute of the
plaintiff’s goods; for example, that a textbook is the one prescribed for a
particular course: Cambridge University Press v University Tutorial Press
(1928) 45 RPC 335.

24.29 The action does not extend to cases of inverse passing off where a
defendant appropriates the product of another’s labour and misrepresents it
as the defendant’s own without giving any credit: Lever Bros Ltd v Bedingfield
(1899) 16 RPC 3. Here, there may be an action for breach of copyright or
conversion, but it is not passing off.

Remedies
24.30 Common law damages for passing off are at large: Draper v Trist
(1939) 56 RPC 429; [1939] 3 All ER 513. This means that, in addition to
compensatory damages for commercial loss, a plaintiff may recover
compensation for loss of goodwill and damage to reputation: A G Spalding &
Bros v A W Gamage Ltd (1915) 84 LJ Ch 449; (1918) 35 RPC 101.

24.31 A plaintiff may elect to pursue the equitable remedy of account as an

alternative to recover any profits made by the defendant. An injunction may
be obtained where there has been positive injury or a reasonable probability
of injury, for example to business or goodwill: B M Auto Sales Pty Ltd v
Budget Rent a Car System Pty Ltd (1976) 12 ALR 363. Although, at common
law, no property in any name or word is recognised, it is possible, through
business operations, to acquire reputation for a name associated with a
particular product which may be protected by the grant of an injunction:
Tavener Rutledge Ltd v Trexapalm Ltd [1977] RPC 275.

24.32 Exemplary damages may be claimed if the defendant’s conduct

warrants it, for example the defendant intentionally misled the consumer or
persisted with the conduct when given notice of being in breach: Flamingo
Park Pty Ltd v Dolly Dolly Creations Pty Ltd (1986) 65 ALR 500 at 526; 6 IPR
431 at 456–7; Deckers Outdoor Corporation Inc v Farley (No 5) (2009) 262
ALR 53; 83 IPR at [98]; Facton Ltd v Rifai Fashions Pty Ltd (2012) 287 ALR
199.

24.33 A quia timet injunction may be granted for threatened damage:

Associated Newspapers plc v Insert Media Ltd [1991] 1 WLR 571. It should be
remembered, however, that the equitable remedies are discretionary and such
matters as public interest may be considered in the exercise of the discretion:
Miller v Jackson [1977] QB 966.
In Henderson v Radio Corporation Pty Ltd [1969] RPC 218 at 284, Evatt CJ
and Myers J reminded that:
Passing off is a wrong and is actionable at law. In such an action damage is presumed on proof
of passing off and, therefore, a nominal sum by way of damages follows as a matter of course.
General damages may, however, only be awarded if there is evidence of damage. Instead of
proceeding at law a plaintiff may sue in equity for an injunction, as may be done in respect of
other wrongful acts of a different nature. If he sues in equity, he takes advantage of the equitable
principle that the court will interfere by injunction to restrain irreparable injury to property: per
Romer LJ in Samuelson v Producers Distributing Co Ltd (1931) 48 RPC 580 at 593; [1931] 1 All

[page 625]

ER 74 at 82, and therefore he must go further than he need at law. He must show irreparable
injury, that is that he has suffered injury which cannot be properly compensated by damages, or
that he will probably suffer such injury.

In Hogan v Koala Dundee Pty Ltd [1988] 83 ALR 187, Paul Hogan, as co-
writer of the movie Crocodile Dundee, assigned merchandising rights
associated with the character. The defendant sold Australiana souvenirs,
some of which were strongly reminiscent of Mick Dundee, the fictional movie
character. An injunction was sought and granted, the court holding that
passing off may be brought in respect of an image or name not connected
with any business carried on by that person.

Legislation
24.34 The tort of passing off has, to a large extent, been overtaken by
actions for misleading and deceptive conduct pursuant to s 18 of the
Australian Consumer Law (previously s 52 of the Trade Practice Act 1974
(Cth)): Competition and Consumer Act 2010 (Cth) Sch 2. Section 18 states:
A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or
is likely to mislead or deceive.

24.35 The differences between the statutory action and the common law
action of passing off are:
A statutory action under s 18 requires that the defendant’s conduct
must have occurred in ‘trade or commerce’. However, ‘trade or
commerce’ has been interpreted broadly.
In a s 18 action, it must be established that there is a likelihood of a
consumer being misled or deceived; it is not necessary to prove that
anyone was in fact misled or deceived. Therefore, a plaintiff need not
prove that the false representation would deceive a substantial or
significant number of consumers as required by the passing off action,
only that a reasonable person within the class of consumers would be
deceived. In .au Domain Administration Ltd v Domain Names
Australia Pty Ltd (2004) 207 ALR 521 at [25], Finkelstein J stated that
there was:
… no warrant for imposing a requirement that in a “representation to the public” case
significant members of the public must be misled by the impugned conduct before
there can be a contravention of [s 18]. First, [s 18] does not prescribe this requirement.
Second, there is no reason in principle why the requirement should exist. Third, it
would be strange if a court were to determine that certain conduct had the capacity to
mislead (and did in fact mislead a handful of people) but nevertheless held that the
conduct was not actionable because an insufficient number of people were misled.
 Section 18 does not require proof of any particular reputation, whereas
for passing off the action will fail if the plaintiff cannot prove a
reputation at the time of the alleged interference. See Cadbury
Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2007) 159
FCR 397; 239 ALR 662 at [98]–[99]; Hansen Beverage Co v Bickfords
(Australia) Pty Ltd (2008) 251 ALR 1 at [44].
A breach of s 18 does not require proof of damage, but as in passing off
actions there is a presumption that damage is suffered, this distinction
is not particularly significant.

[page 626]

The action of passing off is to protect the property and goodwill of a

plaintiff’s business, but s 18 is for the protection of consumers:
Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd
(2007) 159 FCR 397; 239 ALR 662.
A plaintiff may be awarded exemplary or aggravated damages if
successful in a passing off action, but such damages are not available
for a breach of s 18.

24.36 It is common for a plaintiff to plead passing off and a breach of s 18

in the alternative, and as the two actions have substantial overlap, they are
often dealt with together: see, for example, Deckers Outdoor Corporation Inc v
Farley (No 5) (2009) 262 ALR 53 at [36]. In that case the applicant claimed in
passing off and for misleading or deceptive conduct. In considering the
statutory action, Tracey J stated (at [45]):
… it is necessary for the court to assess whether the conduct of [the respondent] was likely to
mislead potential customers, whether they be astute or gullible, intelligent or lacking in
intelligence, well educated or poorly educated: .au Domain Administration Ltd v Domain Names
Australia Pty Ltd (2004) 207 ALR 521; 61 IPR 81; [2004] FCA 424 at [15]. It is not necessary for
[the applicant] to establish that anyone was actually misled or deceived: see Parkdale Custom
Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 198; 42 ALR 1 at 6; 1A IPR 684 at
 688. Conduct is likely to mislead or deceive if, on an objective assessment, there is a real and not
remote possibility that it will do so. It is not necessary for an applicant to establish that the
degree of likelihood exceeds 50%: see Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd
(1984) 2 FCR 82 at 87; 55 ALR 25 at 29–30.

24.37 The law of intellectual property also provides protection through

legislation. For example, a registered trade mark is protected by s 120 of the
Trade Marks Act 1995 (Cth) which creates an infringement if a person uses
‘as a trade mark a sign that is substantially identical with, or deceptively
similar to, the trade mark in relation to goods or services in respect of which
the trade mark is registered’. The tort of passing off protects the reputation
attached to a trade mark, which then gives some protection to the trade mark
itself.3 Section 230 of that Act provides that the law of passing off is not
affected, except that no damages may be awarded if the defendant was
unaware that the trade mark was in use and when they did become aware they
immediately ceased to use the trade mark.
An action in passing off may also support an infringement of the Copyright
Act 1968 (Cth).

3 Interference with Contractual Relations

24.38 At common law, an action on the case lies against a person who
induces another to break a contract or otherwise interferes with a contract
with the plaintiff: Lumley v Gye (1853) 2 El & Bl 216; 118 ER 749; Williams v
Hursey (1959) 103 CLR 30; Greig v Insole [1978] 1 WLR 302; 3 All ER 449.
Lumley v Gye concerned the enticement of the then famous Miss Wagner
away from her contractual obligations to perform exclusively in the plaintiff’s
theatre, by the defendant lessee of another theatre. In the words of Wightman
J (at 757):

[page 627]
 It was undoubtedly prima facie an unlawful act on the part of Miss Wagner to break her
contract, and therefore a tortious act of the defendant maliciously to procure her to do so; and, if
damage to the plaintiff followed in consequence of that tortious act of the defendant, it would
seem, upon the authority of the two cases referred to, of Green v Button ((1835) 2 CM & R 707)
and Winsmore v Greenbank ([(1745)] Willes, 577), as well as upon general principle, that an
action on the case is maintainable.

24.39 Although the tort derived originally from a master’s right of action
for interferences to his or her proprietary interest in his or her servant’s
services, it now extends to breaches of more general kinds of contracts: Quinn
v Leathem [1901] AC 495; Greig v Insole (which involved World Series
Cricket); News Ltd v Australian Rugby Football League Ltd (1996) 58 FCR
447; 135 ALR 33.

24.40 In order to establish an action for interference with contractual

relations, the plaintiff must establish the following elements:
a valid existing contract;
defendant had knowledge of the contract;
intention;
wrongful or unlawful interference;
interference with performance of contract; and
damage.
See Daebo Shipping Co Ltd v Ship Go Star (2012) 294 ALR 635 at [88].

Contract
24.41 The contract allegedly interfered with must be valid and enforceable:
News Ltd v Australian Rugby Football League Ltd (1996) 58 FCR 447; 135
ALR 33. Interferences with contracts which are void are not actionable:
British Motor Trade Association v Gray [1951] SC 586. It is unclear whether a
contract which is merely voidable will support an action, although there is
authority, and good reason, that it will not: Doust v Godbehear (1925) 28
WALR 59; see also Greig v Insole [1978] 1 WLR 302; 3 All ER 449.
24.42 There is authority for the proposition that an interference with pre-
contractual negotiations which results in the contract not being entered into
at all is actionable: Quinn v Leathem [1901] AC 495; James v Commonwealth
(1939) 62 CLR 339; Gershman v Manitoba Vegetable Producers’ Marketing
Board (1977) 69 DLR (3d) 114.

Knowledge of the Contract

24.43 It must be shown that the defendant knew of the contractual
relationship. Isaacs J in Short v City Bank of Sydney (1912) 15 CLR 148 at 160
held:
… the defendant must have induced or procured the doing of what he knew would be a breach
of contract. A bona fide belief reasonably entertained that it was not a breach of contract would
be fatal to the claim. If the defendant did not know of the existence of the contract, he could not
induce its breach; … if he believed on reasonable grounds that the contract had been rescinded
… when in fact it had not, he could not be said to knowingly procure its breach.

[page 628]

In Woolley v Dunford (1972) 3 SASR 243 at 270, it was stated that the
question was ‘whether the defendant had sufficient knowledge of the contract
to know that he was hindering or preventing its performance’. See also DC
Thomson & Co Ltd v Deakin [1952] Ch 646; Independent Oil Industries Ltd v
Shell Co of Australia Ltd (1937) 37 SR (NSW) 394 at 414–15.
In Sai Teys McMahon Real Estate Pty Ltd v Queen Street Apartments Pty
Ltd [2007] QSC 264, the defendant tried to argue that it believed that the
contract with the plaintiff had been legally terminated. The evidence,
however, established that the defendant ‘did not honestly believe and had no
reasonable grounds for believing’ that the plaintiff’s contract had been
terminated previously: at [135]. See also Fightvision Pty Ltd v Onisforou
(1999) 47 NSWLR 473.
24.44 It is sufficient if common sense would lead to the drawing of the
inference of the existence of a contract: J T Stratford & Sons Ltd v Lindley
[1965] AC 269. Knowledge of the precise terms of the contract is not
necessary: Emerald Construction Co Ltd v Lowthian [1966] 1 WLR 691;
[1966] 1 All ER 1013; Qantas Airways Ltd v Transport Workers’ Union of
Australia (2011) 280 ALR 503 at [441].

24.45 Where the defendant is a corporation, it is sufficient that its officers

or employees knew of the contract, even if they are no longer employed by the
corporation: Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473.

Intention
24.46 In Qantas Airways Ltd v Transport Workers’ Union of Australia
(2011) 280 ALR 503 at [440], it was stated that there ‘is no doubt that
intention is a necessary element’ and in Allstate Life Insurance Co v Australia
and New Zealand Banking Group Ltd (1995) 130 ALR 469 at 484, Lindgren J
held that the ‘gravamen of the tort is the defendant’s intention to induce or
procure the breach in the knowledge that such a breach will interfere with the
plaintiff’s contractual rights’.

24.47 Proof of malice is not necessary: Quinn v Leathem [1901] AC 495;

South Wales Miners’ Federation v Glamorgan Coal Co Ltd [1905] AC 239 at
250. However, it must be shown that the defendant intended to interfere with
the contractual relationship: Emerald Construction Co Ltd v Lowthian [1966]
1 WLR 691; [1966] 1 All ER 1013.

24.48 While negligent conduct will not be sufficient, reckless or indifferent

conduct may be: Daily Mirror Newspapers Ltd v Gardner [1968] 2 QB 762;
Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd
(1995) 130 ALR 469; Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473 at
[171]; Orica Investments Pty Ltd v McCartney [2007] NSWSC 645 at [330];
Daebo Shipping Company Ltd v The Ship Go Star (2012) 207 FCR 220 at [89];
Donaldson v Natural Springs Australia Ltd [2015] FCA 498 at [207].
The fact that the breach of contract is the reasonably foreseeable result of
the conduct does not amount to intention: OBG Ltd v Allan [2008] 1 AC 1;
[2007] 4 All ER 545 at [42]–[43]; LED Technologies Pty Ltd v Roadvision Pty
Ltd (2012) 199 FCR 204 at [52].

[page 629]

24.49 It is irrelevant that the primary motive was the promotion of the
defendant’s own interests: Exchange Telegraph Co Ltd v Gregory & Co [1896]
1 QB 147; Lonrho v Fayed [1989] 3 WLR 631; Hospitality Group Pty Ltd v
Australian Rugby Union Ltd (2001) 110 FCR 157.

Interference
24.50 The interference with the contract may be direct or indirect: see
Greig v Insole [1978] 1 WLR 302; 3 All ER 449; Qantas Airways Ltd v
Transport Workers’ Union of Australia (2011) 280 ALR 503 at [451].

Direct
24.51 The interference is committed by direct means when a party to a
contract is directly persuaded to breach the contract (Lumley v Gye (1853) 2
El & Bl 216; 118 ER 749) or where the property or person of another is
directly interfered with in such a way as to prevent performance of the
contract: GWK Ltd v Dunlop Rubber Co Ltd (1926) 42 TLR 376; British Motor
Trade Association v Salvardori [1949] Ch 556. In Fortron Automotive
Treatments Pty Ltd v Jones (No 3) [2011] FMCA 467 at [135], it was
explained:
Direct interference may be brought about by words (persuasion or procurement) or by deeds
 (disabling the person with whom the applicant has contracted from continuing with
performance of the contract).

24.52 Advice that leads to a breach of contract is not necessarily

actionable. For example, advice that does not amount to persuasion would
not be the basis for an action. In Communications, Electrical, Electronic,
Energy, Information, Postal, Plumbing and Allied Services Union of Australia v
Corke Instrument Engineering (Australia) Pty Ltd; Siemens Ltd v CEPU (2005)
223 ALR 480 at [19], Finkelstein J noted that the cases made:
… a distinction between “procuring” or “inducing” which is said to be unlawful, and “advice”
which is said not to be unlawful. The prevailing view is that to induce a breach of contract
means to create a reason for breaking it; to advise a breach of contract is to point out the reasons
that already exist. The former is actionable while the latter is not: see generally South Wales
Miners’ Federation v Glamorgan Coal Co Ltd [1905] AC 239; DC Thomson & Co Ltd v Deakin
[1952] Ch 646 at 686; [1952] 2 All ER 361 at 373.

Indirect
24.53 The interference is indirect when the defendant persuades a third
party to bring about the breach of contract. If the interference is indirect, the
act of the defendant must be unlawful, which may be a crime or a tort, for
example if the defendant threatens the third party to either act or refrain from
acting, in order to procure a breach of the plaintiff’s contract: D C Thomson
Ltd v Deakin [1952] 1 Ch 646; J T Stratford & Sons Ltd v Lindley [1965] AC
269.

Breach of Contract
24.54 The wrongful or unlawful interference carried out with the intention
of procuring a breach must, in fact, result in breach of contract or, at least,
interfere with the performance of the contract: Allen v Flood [1898] AC 1;
Torquay Hotel Co Ltd v Cousins [1969] 2 Ch 106

[page 630]
at 137–8; Woolley v Dunford (1972) 3 SASR 243 at 268. Under the extension
of the tort to interference with pre-contractual negotiations referred to above
at 24.36, termination of the pre-contractual negotiations would be sufficient
to satisfy this element. See also Qantas Airways Ltd v Transport Workers’
Union of Australia (2011) 280 ALR 503 at [445].

Damage
24.55 The breach of contract must result in damage to the plaintiff: Jones
Bros (Hunstanton) Ltd v Stevens [1955] 1 QB 275. In Traffic Calming
Australia Pty Ltd v CTS Creative Traffic Solutions Pty Ltd [2015] VSC 741, the
court noted that the damage to the plaintiff was the loss of profits and the cost
of having the breach of contract investigated.
Damage may be inferred: Exchange Telegraph Co Ltd v Gregory & Co
[1896] 1 QB 147. In Greig v Insole [1978] 1 WLR 302; [1978] 3 All ER 449, the
court held that there must be an apprehension of the likelihood of damage,
which must be more than nominal.

Defences
24.56 The defence of justification may be raised in relation to an
interference with contractual relations: Quinn v Leathem [1901] AC 495 at
510. The defence does not encompass inducing the breach of contract to
further the defendant’s own interests: Ansett Transport Industries
(Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637;
(1989) 95 ALR 211.

24.57 The High Court considered the defence of justification in relation to

interference with contractual relations in Zhu v Treasurer of New South Wales
(2004) 218 CLR 530; 211 ALR 159.
In Zhu, the plaintiff had entered into a contract with TOC Management
Services Pty Ltd (TOC) to market the Sydney Olympic Games in China. It
subsequently became evident that the terms of the contract between the
plaintiff and TOC were contrary to the terms of the Sydney 2000 Games
(Indicia and Images) Protection Act 1996 (Cth). The defendant, the Sydney
Organising Committee for the Olympic Games (SOCOG), therefore
convinced TOC to terminate its contract with the plaintiff.
The plaintiff sued SOCOG for interference with contract and was
successful at first instance, being awarded damages of $4,234,319, including
$95,000 in aggravated damages and $200,000 in exemplary damages. The
defendant successfully appealed to the New South Wales Court of Appeal on
the basis that it had a defence of justification. The High Court, in a joint
judgment, held that the defence of justification was not made out because
SOCOG’s conduct did not meet the criteria for the defence of justification.
These criteria require that the defendant had a superior legal right which
justified, or made lawful, the interference with the contractual rights of the
plaintiff. This superior right may be conferred by statute or be some other
form of superior legal right. Self-interest is not sufficient, nor is it sufficient
that the defendant’s contractual rights were created earlier in time or are
equal to the plaintiff’s rights under the contract. The court did leave open the
question, however, of whether the defendant’s superior right could be created
at a later point in time than the plaintiff’s contractual rights.

[page 631]

The High Court also held that, even where the defendant’s rights are
superior, the interference must, nevertheless, still be ‘reasonably necessary’ to
protect those rights. This is consistent with the general principle that courts
prefer their own curial processes. In the present case, there was no reason
why the defendant could not, for example, have sought an injunction to
enforce the rights it claimed justified its interference with the plaintiff’s
contractual rights.
Remedies
24.58 A plaintiff may claim compensatory damages for the economic loss
suffered, which is often assessed as the profits the plaintiff would have
received had the contract not been breached: Zhu v Treasurer of New South
Wales (2004) 218 CLR 530; 211 ALR 159. Damages are at large (Lumley v Gye
(1853) 2 El & Bl 216; 118 ER 749), meaning that damages may be awarded for
any loss that may reasonably be inferred, together with exemplary or punitive
damages, and even compensation for injured feelings consequent upon the
breach: Pratt v British Medical Association [1919] 1 KB 244.

24.59 A court may also make orders by way of a mandatory or prohibitive

injunction so as to more effectively remedy the effects of the tort: News
Limited v Australian Rugby Football League Ltd (1996) 139 ALR 193 at 291.

4 Conspiracy
24.60 The tort of conspiracy involves two or more defendants combining
to commit an act with the intention to cause loss to the plaintiff. Persons
involved in a conspiracy may be liable in both tort and criminal law: Peters v
R (1998) 192 CLR 493. In Crofter Handwoven Harris Tweed Co Ltd v Veitch
[1942] AC 435 at 439–40, Viscount Simon LC described the difference
between the civil and criminal forms of the action as follows:
Conspiracy, when regarded as a crime, is the agreement of two or more persons to effect any
unlawful purpose, whether as their ultimate aim, or only as a means to it, and the crime is
complete if there is such agreement, even though nothing is done in pursuance of it … But the
tort of conspiracy is constituted only if the agreed combination is carried into effect in a greater
or less degree and damage to the plaintiff is thereby produced. It must be so, for, regarded as a
civil wrong, conspiracy is one of those wrongs (like fraud or negligence) which sound in
damage, and a mere agreement to injure, if it was never acted upon at all and never led to any
result affecting the party complaining, could not produce damage to him.

See also Quinn v Leathem [1901] AC 495 at 528–9, per Lord Brampton;
Allen v Flood [1898] AC 1; Latham v Singleton [1981] 2 NSWLR 843; Riley v
Organ [1921] St R Qd 28.
The tort was defined in Ballard v Multiplex [2012] NSWSC 426 at [65], as
follows:
At common law, the parties to an agreement may incur civil liability to a third party if by their
agreement they “combine” for the purpose of causing harm to that third party; if they execute
their agreement by the performance of overt acts; and if thereby the third party does suffer
harm.

24.61 It is necessary for the plaintiff to establish the following elements:

an agreement between two or more persons;

[page 632]

the intention of the agreement was to injure the plaintiff by unlawful

means; and
the carrying out of the agreement resulted in damage to the plaintiff.

Agreement
24.62 It is essential that there be an agreement between two or more
persons. It was explained in Chong v CC Containers Pty Ltd [2015] VSCA 137
at [133] how an agreement may be proven:
As conspirators will ordinarily conceal their unlawful agreement, it will often be the case that
there is no direct evidence of the combination. The conspiracy may be proved without direct
evidence of an express agreement or understanding as to the common design (Australian Wool
Innovation Pty Ltd v Newkirk (2005) ATPR ¶42-053 at 42,674 [62] (Hely J)). It is generally a
matter of inference deduced from certain acts of the parties done in pursuance of the apparent
purpose in common between them. The overt acts done in furtherance of the combination may
support the inference that there was such an agreement or understanding to further the
common unlawful object of the combination (Australian Wool Innovation Pty Ltd v Newkirk).
Separate acts of co-conspirators may be relied upon which have such a concurrence of time,
character, direction and result as naturally leads to the inference that these separate acts were the
outcome of pre-concert or some mutual contemporaneous engagement evidencing the common
 object of the combination (Latham v Singleton [1981] 2 NSWLR 843 at 859 (Nagle CJ at CL),
citing R v A-G (Cth) v Associated Northern Collieries (1911) 14 CLR 387at 400 (Isaacs J)). A mere
co-incidence of separate acts however, which by their conjoined effect cause damage, will not
suffice. The evidence must be such as to permit it to be inferred that the acts were undertaken in
pursuit of the common object so that it may be said that the actors acted in concert towards the
common end (Peters v R (1998) 192 CLR 493 at 516–20 (McHugh J); Dresna Pty Ltd v Misu
Nominees Pty Ltd (2004) ATPR ¶42–013 at 48,885 [12] (Kiefel and Jacobson JJ)).

24.63 A conspiracy action may lie against a company if the company’s

directors, whose acts and statements are relied upon to establish the
conspiracy, were acting at the time with the authority of the company: Ahern
v R (1988) 165 CLR 87; 80 ALR 161; Neat Holdings Pty Ltd v Karajan
Holdings Pty Ltd (1992) 110 ALR 449; compare O’Brien v Dawson (1942) 66
CLR 18. The necessary combination of persons may include a variety of forms
and is not restricted to any particular classes of individuals: Crofter
Handwoven Harris Tweed Co Ltd v Veitch [1942] AC 435; White v Riley
[1921] 1 Ch 1. See, for example, Deutsch v Rodkin [2012] VSC 450 (various
members of the defendant’s family lodged caveats to delay the plaintiff selling
her property).

Intention
24.64 The tort of conspiracy has two forms and the requisite intention is
dependent upon the form:
the defendants conspired to commit an unlawful act to injure the
plaintiff; and
the defendants conspired to commit a lawful act to injure the plaintiff.

24.65 The plaintiff must have been identified as the target of the
conspiracy; it is not sufficient that the plaintiff be a member of an
unascertained class: Dresna Pty Ltd v Misu Nominees Pty Ltd [2004] FCAFC
169.
 [page 633]

24.66 In Crofter Handwoven Harris Tweed Co Ltd v Veitch [1942] AC 435

at 445, Viscount Simon LC noted that the intention of the defendants is vital
to the action, not what the foreseeable consequence of their conduct may be:
[T]he test is not what is the natural result to the plaintiffs of such combined action, or what is
the resulting damage which the defendants realise or should realise will follow, but what is in
truth the object in the minds of the combiners when they acted as they did. It is not consequence
that matters, but purpose …

See also Fatimi Pty Ltd v Bryant (2004) 59 NSWLR 678 at 681.

24.67 To prove the purpose of the conspiracy, the defendants must have
all agreed upon the purpose, or one defendant with the purpose to injure the
plaintiff must have made it known to the other defendants and they joined or
continued with the conspiracy:
To prove the (or a) purpose of a conspiracy, it must be shown either that the parties agreed on
that purpose or that one party, having that purpose, made it known to the other or others, and
that the other or others, having that knowledge, joined or continued with or performed the
conspiracy: Ballard v Multiplex [2012] NSWSC 426 at [66].

See also McKernan v Fraser (1931) 46 CLR 343 at 407–8 per Evatt J.

Unlawful act
24.68 If the defendants conspire to commit an unlawful act to injure the
plaintiff, then there is the requisite intention: Fatimi Pty Ltd v Bryant (2004)
59 NSWLR 678.
In Lonrho plc v Fayed [1992] 1 AC 448, the plaintiff wished to take over
another company but was prevented from increasing its stake of the share
capital by an undertaking given to the Secretary of State, pending the
outcome of a reference to the then Monopolies and Mergers Commission
(UK). The first three defendants, through the medium of the fourth, made a
rival bid for 100 per cent of the share capital of the company. The offer was
approved by the directors of the company, was not referred to the
Commission and the defendants gained control of the company. The plaintiff
then issued a writ against the defendants and, by its statement of claim,
alleged, inter alia, that the first three defendants, by false statements about
their financial capacity to acquire the share capital and develop the company’s
business, had conspired against the plaintiff. In declining to strike out the
plaintiff’s statement of claim, the House of Lords confirmed that, where an
alleged conspiracy is one involving unlawful means, it is sufficient merely for
the applicants to prove that the combination of the defendants doing one or
more of those unlawful acts resulted in damage to them without further
proving that the predominant purpose of the conspirators was an intention to
injure the applicants.

24.69 An unlawful act may involve a breach of contract (Stanley v Layne

Christensen Co [2006] WASCA 56; McKernan v Fraser (1931) 46 CLR 343),
including an employment contract: Williams v Hursey (1959) 103 CLR 30;
Maritime Union of Australia v Patrick Stevedores No 1 Pty Ltd (1998) 153
ALR 602 at 612–13. See Ansett Transport Industries

[page 634]

(Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637;

(1989) 95 ALR 211, where the court held that the directive of the defendant
that pilots were to only work from 9 am until 5 pm was procuring breaches of
the pilot’s employment contracts and therefore an unlawful act.
A breach of a statutory provision which imposes liability, including those
imposing criminal liability, are unlawful means: Fatimi Pty Ltd v Bryant
(2004) 59 NSWLR 678.

Lawful act
24.70 If the conspiracy is based upon lawful acts, the intention to injure
the plaintiff need not be the sole purpose, but it must be the predominant
purpose: McKernan v Fraser (1931) 46 CLR 343 at 362. In Crofter Handwoven
Harris Tweed Co Ltd v Veitch [1942] AC 435 at 445, it was pointed out that it
is possible that the predominant purpose is to protect interests of others, but
in that, the plaintiff suffers loss:
If that predominant purpose is to damage another person and damage results, that is tortious
conspiracy. If the predominant purpose is the lawful protection or promotion of any lawful
interest of the combiners (no illegal means being employed), it is not a tortious conspiracy, even
though it causes damage to another person.

In Ansett Transport Industries (Operations) Pty Ltd v Australian Federation

of Air Pilots [1991] 1 VR 637; (1989) 95 ALR 211, the court identified the
predominant purpose of the defendant in advising and procuring the
resignations of the pilots as part of the industrial dispute was to protect the
pilots from liability for breach of contract, not to cause injury to the four
employer airlines. Therefore, there was no conspiracy in relation to the
limited working hours directive. See also Crofter Handwoven Harris Tweed
Co Ltd v Veitch [1942] AC 435.

Damage
24.71 A plaintiff must show that actual damage was suffered or it must be
possible to reasonably infer that damage has been suffered: Fatimi Pty Ltd v
Bryant (2004) 59 NSWLR 678.

Defences
24.72 The defence of justification may be raised if the conspiracy is by
lawful means: McKernan v Fraser (1931) 46 CLR 343; Latham v Singleton
[1981] 2 NSWLR 843. A conspiracy by unlawful means by the very fact it
involves an unlawful act, is unlikely to have the defence of justification
available.
Remedies
24.73 Damages may be awarded to compensate loss suffered by the
plaintiff as a result of the conspiracy. Consequential, foreseeable losses may be
claimed, but compensation for injury to reputation is not available: Lonrho v
Fayed [1989] 3 WLR 631.

24.74 Exemplary damages are available if the conspiracy has been

established and compensatory damages are available: Fatimi Pty Ltd v Bryant
(2004) 59 NSWLR 678.

[page 635]

5 Intimidation
24.75 The tort of intimidation involves a person threatening, or carrying
out, an unlawful act to intimidate the plaintiff into doing or refraining from
doing something, with the intention of causing economic loss: Rookes v
Barnard [1964] AC 1129. Intimidation may be both a tort and a crime: see,
for example, Queensland Criminal Code 1899 s 534.
In Habib v Commonwealth (No 2) (2009) 175 FCR 350; 254 ALR 250 at
[19], the elements of the tort of intimidations were stated to be:
First, there must be a demand made of the plaintiff by the defendant coupled with a threat to
either the plaintiff or a third party: Stratford (JT) & Son Ltd v Lindley [1965] AC 269 at 283;
[1964] 3 All ER 102 (Stratford) per Lord Denning MR. Second, the threat issued by the
defendant must be to commit an unlawful or illegal act. The illegality required need not be
criminal; indeed, it has been held that a threat to breach a contract is a sufficient threat for the
purposes of the tort: Rookes v Barnard [1964] AC 1129; [1964] 1 All ER 367. Third, it must be
shown that the plaintiff complied with the demand: Stratford at 283.

See also Morgan v Fry [1968] 2 QB 710 at 724; Jack Brabham Engines Ltd v
Beare [2010] FCA 872 at [303].
 In Construction, Forestry, Mining and Energy Union v Boral Resources (Vic)
Pty Ltd (ACN 004 620 731) [2014] VSCA 348, the appellant submitted that
the continuing recognition of the tort of intimidation had to be questioned in
light of the Australian industrial relations statutory framework. The court
pointed out that the existence of a tort was not affected by legislation,
‘[o]therwise, the life of such a cause of action would wax or wane according to
the state of the legislation’ (at [57]), and for legislation to abrogate the right of
plaintiff for redress against a wrongdoer for intimidation would need ‘a clear
and unambiguous statement of legislative intention’: at [58].

24.76 To succeed in the tort of intimidation, a plaintiff must establish:

a threat of an unlawful act by the defendant to the plaintiff or a third
party;
compliance with the threat;
the defendant intended to cause injury to the plaintiff; and
loss was suffered by the plaintiff.

Threat of an Unlawful Act

24.77 The threat or demand of the defendant must require the plaintiff or
third party to take a particular course of action. In Habib v Commonwealth
(No 2) (2009) 175 FCR 350; 254 ALR 250 at [20], the court noted that there
was no evidence that the defendant sought to coerce the plaintiff into a
particular course of action and therefore the action in intimidation failed. See
also Huljich v Hall [1973] 2 NZLR 279.

24.78 In Rookes v Barnard [1964] AC 1129, it was recognised that the

intimidation may be of the plaintiff or of a third party to cause harm to the
plaintiff. In that case, union members threatened the plaintiff’s employer with
an unlawful strike if the plaintiff was not dismissed, therefore it was a threat
against a third party to cause economic loss to the plaintiff.
 [page 636]

24.79 The defendant must threaten or commit some unlawful act. An

unlawful act may be an act that amounts to a crime or a civil wrong: Latham v
Singleton [1981] 2 NSWLR 843.
In Ellis v McGowan (NSWSC, Master Allen, 15 November 1977,
unreported), the plaintiff refused to participate in impromptu stoppages of
work with other union members. The other union members requested that
the employer terminate his employment and subjected him to personal abuse
and impeded his progress in his job. An order of the industrial court to cease
such conduct was ignored. The plaintiff sought damages and the New South
Wales Supreme Court held that the unlawful conduct of the defendants
included assault, defamation, criminal offences and contempt of court.
In Latham v Singleton [1981] 2 NSWLR 843, each time the plaintiff arrived
for work the other employees would walk off the job. This was held to be a
threat of breach of contract to the employer, done with the intent to force the
employer to take action against the plaintiff. See also Sid Ross Agency Pty Ltd
v Actors and Announcers Equity Association of Australia [1971] 1 NSWLR
760; Spira v Commonwealth Bank (2003) 57 NSWLR 544 at [49] (threat of
breach of contract classified as a tort and sufficient for intimidation, but
appellants did not plead the action).
In Nelipa v Robertson [2001] ACTSC 55 at [8], it was noted that to exercise
a statutory power for an improper purpose can amount to an unlawful act for
the tort of intimidation. In that case, the plaintiff alleged that he had been
informed that if he attempted to show cause why his employment with the
Australian Federal Police should not be terminated, as allowed by the
legislation, he would be transferred to a position ‘where he would “end up
being most unhappy”’: at [4]. The court stated (at [9]):
It cannot be a lawful act to transfer a police officer for the purpose of inducing that police officer
to refrain from engaging in some lawful act. There is an apocryphal story of an Australian police
minister, whose car is stopped for speeding, pulling out a road map and opening it to a remote
 area, saying to the young constable writing out the speeding ticket, “Son, where do you want to
be transferred to?” It could not be argued that a threat by a person in authority over a police
officer to transfer a police officer to an undesirable location in order to induce the officer to not
proceed to do his duty by issuing an infringement notice would not be an unlawful act. Indeed it
would probably be a crime.

See also Latham v Singleton [1981] 2 NSWLR 843 at 864, where the
defendants conspired so as to threaten the plaintiff’s employer:
The conclusion has already been expressed in this judgment that the majority of the defendants
acted in concert when they walked off the job on the appearance of the plaintiff at the depot, and
that their actions were meant to constitute a threat to the city council which would be forced to
take action against the plaintiff if it was unable to maintain the garbage and sanitary services of
the City of Broken Hill.

Compliance
24.80 The act of the defendant must coerce the plaintiff or third party into
acting in a way they did not wish to. If there is no submission to the threat,
there can be no action: J T Stratford & Son Ltd v Lindley [1965] AC 269 at
283.

[page 637]

Intention
24.81 It is necessary to prove that the defendant intended the
consequences of his or her act or threat: Rookes v Barnard [1964] AC 1129;
Latham v Singleton. The threat to commit a lawful act cannot form the basis
of an action: Allen v Flood [1898] AC 1.

Damage
24.82 The compliance with the threat must result in economic loss to the
plaintiff. In Ansett Transport Industries (Operations) Pty Ltd v Australian
Federation of Air Pilots [1991] 1 VR 637; (1989) 95 ALR 211, four Australian
airlines took action against the defendants in interference with contractual
relations, conspiracy and intimidation. The parties had been involved in a
dispute concerning pay increases for pilots. As part of the dispute, nearly all
pilots resigned from their employment, leading to the airlines placing
advertisements in Australia and overseas seeking pilots. In response, the
defendant advertised in newspapers that any pilot seeking employment with
the airlines would be considered to be a strike breaker and that the terms of
the settlement of the dispute would include a provision for the immediate
cancellation of the employment contracts of those pilots. The airlines alleged
that the advertisement by the defendant prevented pilots from seeking
employment with them. The court held that there was no direct evidence
provided by the airlines as to loss suffered as a consequence of the defendant’s
advertisement. The court stated (at VR 696; ALR 273):
The warning notice certainly had a tendency to deter pilots from seeking employment with the
plaintiffs. The defendants concerned thought it worthwhile, in the hope of warning pilots off, to
go to the trouble and incur the expense of publishing it. The pool of pilots available to the
plaintiffs, made up both of those who had resigned and of other pilots in Australia and abroad,
was very large. It may be that some pilots were deterred from taking employment with the
plaintiffs by the notice. The numbers recruited have not been large. On the other hand there
were a number of other factors operating to influence the minds of pilots and I do not find any
satisfactory evidence of an incident in which a particular pilot appeared to be deterred from
taking employment not merely by the warning notice but by the objectionable feature of that
notice, that is, the threat that new employees would be dismissed. So far as other factors are
concerned, these have been canvassed in argument. They include (in the case of those who had
resigned) self-interest and loyalty and (in the case of all pilots) the fear of unpleasant
consequences of one kind or another if they took up employment and anxiety about what their
position would be, in every respect, quite independently of the threat in the notice, if the dispute
was settled and those who had resigned returned to work.

Defences
24.83 Although the decision of Latham v Singleton [1981] 2 NSWLR 843
suggests that the defence of justification may be available to the tort of
intimidation, it is unlikely that such a defence, one that involves unlawful acts
and an intention to harm the plaintiff, would find favour.

Remedies
24.84 Lord Devlin indicated in Rookes v Barnard [1964] AC 1129 at 1221:
It must be remembered that in many cases of tort damages are at large, that is to say, the award
is not limited to the pecuniary loss that can be specifically proved. In the present case, for
example, and leaving aside any question of exemplary or aggravated damages, the appellant’s
damages

[page 638]

would not necessarily be confined to those which he would obtain in an action for wrongful
dismissal. He can invite the jury to look at all the circumstances, the inconveniences caused to
him by the change of job and the unhappiness maybe by a change of livelihood. In such a case as
this, it is quite proper without any departure from the compensatory principle to award a round
sum based on the pecuniary loss proved.

24.85 A plaintiff may claim for any consequential and foreseeable loss
suffered due to the intimidation, including general damages for pain,
suffering and distress: Latham v Singleton.

24.86 Aggravated and exemplary damages are also available: Latham v

Singleton. If the circumstances warrant it, an injunction may be granted.

6 Injurious Falsehood
24.87 Injurious falsehood protects a number of interests and is, in some
ways, similar to defamation, see 24.101. The action is based upon false
representations made maliciously about the plaintiff’s business or goods:
Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632; 23 ALR
167. The common law action is rarely relied upon by itself, as Kirby J pointed
out in Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; 185
ALR 280 at [99]:
… this is a “rare and anomalous tort”. It has rarely been considered by this court or by other
Australian appellate courts. In part, this is doubtless because, unaltered by statute, the cause of
action obliges a plaintiff to prove “each and every” one of its restrictive elements. In part, it is
because facts giving rise to the tort will often lend themselves to proceedings in defamation
where the elements to be proved are less restrictive and the damages may be greater. In part, it
may be because trade practices legislation, where it applies, affords causes of action of broader
ambit and with wider remedies (footnotes omitted).

24.88 The tort of injurious falsehood developed in the 16th century from a
number of more specific causes of action, including:
slander of title, which involved denying the title of a person to property
causing loss, for example by causing the withdrawal of a prospective
purchaser (Smith v Spooner (1810) Taunt 246; 128 ER 98); and
slander of goods, which involved disparagement of the property of the
plaintiff: Western Counties Manure Co v Lawes Chemical Manure Co
(1874) LR 9 Ex 218.

24.89 The elements of the tort of injurious falsehood were

comprehensively listed in Ratcliffe v Evans [1892] 2 QB 524 as:
a false statement about the plaintiff’s business or goods;
publication;
malice on the part of the defendant; and
damage.
See also Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84 at 95
and 102; Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; 185
ALR 280 at [57]; AMI Australia Holdings Pty Ltd v Fairfax Media Publications
Pty Ltd [2010] NSWSC 1395 at [29].

[page 639]
False Statement
24.90 The statement complained of must be proven to be false and the
onus to prove this is upon the plaintiff: Royal Baking Powder Co v Wright,
Crossley & Co (1900) 18 RPC 95 (HL).
Merely comparing the plaintiff’s business or goods to another’s will not
necessarily amount to a false representation. The plaintiff would have to
prove that the description of their business or goods was false and that the
reasonable person would understand the comparison or statement to be a
serious one, not mere ‘puffery’: Schindler Lifts Australia Pty Ltd v Debelak
(1989) 89 ALR 275 at 285. In De Beers Abrasive Products Ltd v International
General Electric Co of New York Ltd [1975] 1 WLR 972 at 978, it was stated,
‘in the kind of situation where one expects, as a matter of ordinary common
experience, a person to use a certain amount of hyperbole in the description
of goods, property or services, the courts will do what any ordinary
reasonable man would do, namely, take it with a large pinch of salt’.

Publication
24.91 The tort of injurious falsehood protects reputation and, therefore,
the statement must have been published to a third party: Ratcliffe v Evans
[1892] 2 QB 524; White v Mellin [1895] AC 154; Richards v Butcher (1890) 7
RPC 288. The statement may be oral or written: Ratcliffe v Evans at 527.

Malice
24.92 The statement must have been made with malice in the sense of
improper motive or lack of good faith, for example through deliberate
misrepresentation: Joyce v Motor Surveys Ltd [1948] Ch 252.
In AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd
[2010] NSWSC 1395 at [31]–[32], Brereton J summarised the authorities on
malice:
 While the notion of “malice” in the context of this tort is not easy to define, it is a question of
motive, intention or state of mind and it involves the use of an occasion for some indirect
purpose or indirect motive such as to cause injury to another person. The English Court of
Appeal has said that the criteria for malice in injurious falsehood are the same as at common law
for libel and slander. Its content has been variously described as “an intent to injure another
without just cause or excuse” or “some indirect, dishonest or improper motive”, or “a purpose
or motive that is foreign to the occasion and actuates the making of the statement”. It involves
that the statement was made mala fide or with a lack of good faith. In this context, while a
person who acts in good faith is not liable, malice may exist without an actual intention to
injure.

As motive must often be inferred from what the defendant did or said or knew, malice is
commonly proved by inference. Malice may be inferred from the “grossness and falsity of the
assertions and the cavalier way in which they were expressed”… Proof that the defendant knew
that a statement was untrue is ordinarily conclusive evidence that its publication was actuated
by an improper motive. On the other hand, mere lack of affirmative belief in truth is insufficient
of itself to establish malice. But malice can be inferred not only where the false publication was
made with knowledge of its falsity, but also where it was made with reckless indifference as to
whether it was true or false. [footnotes omitted]

[page 640]

24.93 Therefore, malice may be established, depending upon the facts, by

proving that the defendant:
knew of the falsity of the statement (Schindler Lifts Australia Pty Ltd v
Debelak (1989) 89 ALR 275); or
was reckless as to whether it was true or false (Palmer Bruyn & Parker
Pty Ltd v Parsons (2001) 208 CLR 388; 185 ALR 280 at [192]–[194];
Menulog Pty Ltd v TCN Channel Nine Pty Ltd [2012] NSWSC 247 at
[31]); or
the statement was made with the intention of causing the plaintiff
damage: Lyne v Nicholls (1906) 23 TLR 86; White v Mellin [1895] AC
154.

24.94 Evidence of the defendant’s personal ill-will towards the plaintiff

will assist in establishing malice. A mere intention to attract business is not
evidence of malice: Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR
275 at 290; De Beers Abrasive Products Ltd v International General Electric Co
of New York Ltd [1975] 1 WLR 972. In Shapiro v La Morta (1923) 40 TLR 201
at 203, Lord Scrutton held that the authorities on this issue:
… suggest that if the defendant is speaking in furtherance of his own business or interest and
honestly believes what he says to be true, in contrast with deliberate intention to injure the
plaintiff, either with knowledge that the statement is untrue or with reckless indifference to
whether it is true or false, then either there is no cause of action or the defendant has a “just
cause or excuse”.

24.95 In Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275, it
was held that a statement that was not without truth, but was an exaggeration,
was made with malice. Pincus J found that the statement gave the wrong
impression about the plaintiff’s business and ‘went beyond a mere
generalisation’: at 291.

Damage
24.96 The plaintiff must prove that they have suffered actual damage, that
is, loss or damage that is the direct and natural consequence of the
defendant’s publication of the false statement: Ratcliffe v Evans [1892] 2 QB
524 at 528, 529, 532; White v Mellin [1895] AC 154 at 159, 160; Hall-Gibbs
Mercantile Agency Ltd v Dun (1910) 12 CLR 84 at 95, 96; Seafolly Pty Ltd
(CAN 001 537 748) v Madden (2012) 297 ALR 337 at [112], [114]. For
example, damage may be the loss of profits or evidence of cancellation of
orders: Ratcliffe v Evans [1892] 2 QB 524 at 533. Being unable to sell the
goods or having to sell them at a lower price would also be damage.
In Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; 185 ALR
280 at [81], the High Court held that the damage is not limited to merely the
damage intended by the defendant:
It will not necessarily be sufficient that the wrongdoer intended damage different in kind from
that which occurred. Where there is a finding that the wrongdoer “intended” a certain
 consequence, the issue of whether the wrongdoer should be liable for a consequence different in
kind will depend largely upon the considerations identified by Pollock (The Law of Torts, 12th
ed, 1923, Stevens, London, p 32) and referred to above. That is to say, it will depend upon the
relation of that which the wrongdoer intended to the consequences which actually resulted. This
relation will generally be assessed by asking whether the damage was the “direct and natural
result” of the publication of the falsehood.

[page 641]

24.97 In Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388;
185 ALR 280, the appellant was engaged by McDonald’s Australia Ltd as a
surveyor for the purpose of developing a site for a new McDonald’s
restaurant. The respondent, a member of the local council who opposed the
development, sent a forged letter containing absurd inducements and threats
to another councillor, purporting to be from the appellant. The letter was
reproduced in a newspaper article which stated that the bogus letter was
being investigated. As a result of the newspaper article, the appellant’s
retainer was terminated by McDonald’s Australia Ltd. The appellant sued the
respondent in injurious falsehood, claiming that the special damage was the
loss of the retainer. The High Court held that reasonable foreseeability of the
damage suffered had no place in the tort of injurious falsehood (at [13] and
[80]) and that the damage suffered must result from the falsehood: at [14].
The court held that the respondent was not liable as the loss of the appellant’s
retainer was not the result of the publication of the letter by the respondent to
the other councillor, but the result of the newspaper article, which was a
truthful report of the investigation of the bogus letter.

Remedies
24.98 The remedy for injurious falsehood is compensatory damages for
the economic loss suffered by the plaintiff as a result of the falsehoods. A
plaintiff cannot be compensated for loss of reputation and it is unclear
whether aggravated damages or exemplary damages are available: see Palmer
Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; 185 ALR 280 at [136]
per Kirby J.

24.99 An injunction may be granted to restrain publication or restrain the

continued publication of the falsehood if there is a probability of damage:
Swimsure (Laboratories) Pty Ltd v McDonald [1979] 2 NSWLR 796.
In Menulog Pty Ltd v TCN Channel Nine Pty Ltd [2012] NSWSC 247, the
plaintiff sought an urgent injunction to prohibit the telecast of a television
program about their business. The program alleged that the plaintiff’s
business was ripping its customers off by taking orders for food deliveries
from a restaurant specified by its customers, but providing food from a
different restaurant. In granting the injunction, the court referred to the
promotion video of the program and stated (at [29]):
It is apparent that the purpose of the program was to demonstrate wrongdoing on some
person’s part (“swindle”, “switch-a-roo” “ripped off”, “scam”). By the approach made to the
Plaintiff it is a reasonable inference that the Plaintiff is the object, or one of the main objects of
attention. The evidence discloses that the Plaintiff, through its website, was the passive recipient
of orders placed, which orders were electronically transferred to Cuisine Courier without any
knowledge on the Plaintiff’s part of what happened thereafter in relation to those orders. The
fact that the Plaintiff was entitled to receive a fee by virtue of its contractual arrangements with
Cuisine Courier does not elevate the Plaintiff’s knowledge or involvement in what happened,
nor does it remotely implicate (in the commonly understood meaning of the word) the Plaintiff
in any fraud, dishonesty or other turpitudinous behaviour described by the words I have
mentioned.

The court noted (at [21]):

In relation to whether an injunction should issue at all in the type of case such as the present, the
authorities have distinguished between cases of defamation and cases where injurious falsehood

[page 642]

is claimed. The usual restraint exercised for the grant of injunctive relief in defamation cases
does not apply with the same force in cases of injurious falsehood: AMI Australia Holdings Pty
 Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395 at [39]; Palmer Bruyn & Parker
Pty Ltd v Parsons (2001) 208 CLR 388 at [58].

See also Beechwood Homes (NSW) Pty Ltd v Camenzuli [2010] NSWSC
521, where the plaintiff sought an interlocutory injunction to prevent the
defendant from publishing certain statements and allegations about the
plaintiff on its website. The judge noted that there was evidence to indicate
that there was a serious issue to be tried in respect of the injurious falsehood
action by the plaintiff. The defendant’s concern was to warn the public at
large about what he considered to be poor workmanship by the plaintiff. As a
failure to achieve that would not cause the defendant any loss but publication
of the material would have the ‘very real potential that it will cause the
plaintiff loss’, the injunction was granted: at [58].
An injunction was refused in DHR International Inc a company
incorporated in Delaware in the United States of America v Challis [2015]
NSWSC 1567 as no evidence was provided that the published statements were
materially false.

Australian Consumer Law

24.100 Section 18 of the Australian Consumer Law (misleading or
deceptive conduct) provides an alternative to an action in injurious falsehood.
The advantages of the statutory action are:
a plaintiff is not required to prove that they have suffered actual loss;
there is no need to prove that the defendant intended to mislead or
deceive (Hornsby Building Information Centre Pty Ltd v Building
Information Centre Ltd (1978) 140 CLR 216); and
there is no need for the plaintiff to establish malice.
See also Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; 185
ALR 280 at [99], per Kirby J.

Comparison with Defamation

24.101 In Orion Pet Products Pty Ltd v Royal Society for the Prevention of
Cruelty to Animals (Vic) (2002) 120 FCR 191 at [198], Weinberg J compared
the torts of injurious falsehood and defamation:
In some respects, this tort [injurious falsehood] bears a marked resemblance to defamation.
Both involve a false and harmful imputation concerning the plaintiff which is made to a third
party. They differ, however, in that the law of defamation protects interests in personal
reputation while injurious falsehood protects interests in the disposability of a person’s
property, products or business. Defamation is generally actionable without proof of damage.
Falsehood is presumed and liability is strict. In an action for injurious falsehood, the plaintiff
must prove that he sustained actual economic loss, that the offending statement was false, and
that it was made with intent to cause injury without lawful justification. The requisite state of
mind is often described as malice.

[page 643]

See also Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 692;
Radio 2UE Sydney Pty Ltd v Chesterton (2009) 254 ALR 606 at [10]–[11]. See
Chapters 22 and 23.

Further Reading
R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis
Butterworths, Sydney, 2013, Ch 21.
J Dietrich, ‘Lawful Coercive Threats and Infliction of Harm’ (2000) 8
TLJ 187.
G H L Fridman, ‘Interference with Trade or Business’ (1993) Tort L
Rev 99.
M Izzo, ‘The Limits of Lumley v Gye: Commercial Disputes and the
Tort of Interference with Contractual Relations’ (2005) 13 TLJ 188.
1. G H L Fridman, ‘Interference With Trade or Business’ (1993) Tort L Rev 99.
2. The tort of unfair competition does not exist in Australia. It would be ‘inconsistent with the
established limits of the traditional and statutory causes of action which are available to a trader in
respect of damage caused or threatened by a competitor’: Moorgate Tobacco Co Ltd v Philip Morris
Ltd (1984) 156 CLR 414 at 445; 56 ALR 193 at 214.
3. For a discussion of the trade mark legislation and the relation with the tort of passing off, see M
Davison, ‘Reputation in Trade Mark Infringement: Why Some Courts Think it Matters and Why
it Should Not’ (2010) 38 Fed L Rev 231.
[page 645]
 Chapter 25

Nuisance

1 Introduction
25.1 There are two types of nuisance actions: a public and a private action.
Both originally developed during the course of the 12th and 13th centuries,
although it was not until the 16th century that a private action in public
nuisance, as opposed to a criminal action, was recognised.
The private nuisance action complements the trespass to land action
discussed in Chapter 4. However, in contrast, the private nuisance action is
concerned with protecting a person’s right to the quiet use and enjoyment of
their possession of land free from unreasonable interferences: Sedleigh-
Denfield v O’Callaghan [1940] AC 880 at 896 per Lord Atkin; Elston v Dore
(1982) 149 CLR 480 at 480 per Gibbs CJ, Wilson and Brennan JJ.
The tort of public nuisance is concerned with the protection of public
rights (for example, a healthy and safe environment) and is also a crime
under the common law and in statute in Queensland and Tasmania: Criminal
Code (Qld) s 230; Criminal Code (Tas) s 141. The tort of nuisance is often
discussed in modern times in relation to claims by landowners for loss
suffered due to the effects of climate change.1
The interference which gives rise to an action in nuisance, private or
public, may be an isolated incident or reoccurring or continuing. However, as
an action on the case, it is only upon damage being suffered that an action
will arise.
 2 Private Nuisance
25.2 Private nuisance has been described as ‘an unlawful interference with
a person’s use or enjoyment of land, or some right over, or in connection with
it’: Hargrave v Goldman (1963) 110 CLR 40 at 49 per Windeyer J; see also
Sedleigh-Denfield v O’Callaghan [1940] AC 880 at 896 per Lord Atkin; Elston
v Dore (1982) 149 CLR 480 at 480 per Gibbs CJ, Wilson and Brennan JJ. In
Marsh v Baxter [2015] WASCA 169 at [242], it was noted:
nuisance is the field of tort liability that protects an occupier’s interest in the use and enjoyment
of their land; its primary concern is with the reciprocal rights and duties of private individuals,
usually neighbours, where there is a conflict over competing uses of land.

[page 646]

25.3 Not every interference with the use of land will be unlawful. The
courts consider a variety of factors before finding that a given activity
constitutes a private nuisance. This is because of the balance required to be
struck between competing uses of land. As Lord Wright commented in
Sedleigh-Denfield v O’Callaghan (at 487–8):
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, or more correctly in a particular
society.

In Southern Properties (WA) Pty Ltd v Executive Director of the Department

of Conservation and Land Management (2012) 42 WAR 287 at [118], the law
of nuisance was summarised:
Nuisance protects a claimant’s interest in the beneficial use of land. It is not confined to the
actual use of the soil but extends to the pleasure, comfort and enjoyment which a person
normally derives from occupancy of land. Thus, nuisance covers physical damage to property
and non-physical damage. To constitute a nuisance, the interference must be unreasonable. In
making that judgment, regard is had to a variety of factors including: the nature and extent of
the harm or interference; the social or public interest value in the defendant’s activity; the
 hypersensitivity (if any) of the user or use of the claimant’s land; the nature of established uses in
the locality (eg residential, industrial, rural); whether all reasonable precautions were taken to
minimise any interference; and the type of damage suffered.

25.4 The elements of private nuisance are:

the plaintiff has title to sue;
an interference with a recognised right attached to land; and
damage.
Consideration must also be given to who may be sued for the nuisance.

Title to Sue
25.5 To have title to sue in private nuisance, the plaintiff must have a
legally recognised interest in land and be in actual possession of the land at
the time of the interference: Malone v Laskey [1907] 2 KB 141; Oldham v
Lawson (No 1) [1976] VR 654. As noted in 25.1, interferences may be one-off,
isolated incidents, repeated or continuing. A plaintiff may sue in respect of a
continuing interference which existed prior to taking possession of the land:
Bliss v Hall (1838) 4 Bing (NC) 183; 132 ER 758.

Owners and tenants

25.6 An owner in possession would have the requisite title to sue, as would
a legal tenant in possession of leased premises: Malone v Laskey [1907] 2 KB
141.
As with a trespass to land action, a reversionary owner can only sue where
the nuisance causes permanent damage to the land: McCarty v Municipality
of North Sydney (1918) 18 SR (NSW) 210; Carter v Kenyon (1863) 2 SCR
(NSW) 222; Jeffrey v Honig [1999] VSC 337. A reversionary owner cannot sue
in private nuisance for temporary interferences which cause no damage to the
proprietary interest.
 [page 647]

A tenant in occupation would have title to sue for any temporary

interferences with the use and enjoyment of the leased premises, but cannot
sue for damage to the reversionary interest: Kensington Starch & Maizena Co
Ltd v Essendon and Flemington Corporation (1880) 6 VLR (L) 265.

Licensees
25.7 Mere occupation of the land will not establish sufficient title even
where the occupier is a member of the owner’s or tenant’s family: Oldham v
Lawson (No 1) [1976] VR 654; Malone v Laskey [1907] 2 KB 141. It was
suggested by the majority of the English Court of Appeal in Khorasandjian v
Bush [1993] QB 727 that, in keeping with changing social conditions, title to
sue should be extended to the daughter of the homeowner who was being
harassed by unwanted telephone calls from her former boyfriend. Dillon LJ,
with whom Rose LJ agreed, said (at 734):
To my mind, it is ridiculous if in this present age the law is that the making of deliberately
harassing and pestering telephone calls to a person is only actionable in the civil courts if the
recipient of the calls happens to have the freehold or leasehold proprietary interest in the
premises in which he or she has received the calls.

Subsequently, this aspect of Khorasandjian v Bush was overruled by the

House of Lords in Hunter v Canary Wharf Ltd [1997] AC 655, which applied
the decision of Malone v Laskey.
The Queensland Court of Appeal, in Deasy Investments Pty Ltd v Monrest
Pty Ltd [1996] QCA 466, relied upon Khorasandjian’s case to hold that a
person in mere possession of premises as a licensee could sue in private
nuisance. As Pincus JA said (at 6):
Although the older cases and in particular Malone v Laskey [1907] 2 KB 141 took a contrary
view, I see no reason why the recent English decision [Khorasandjian v Bush] should not be
followed: it is consistent with a number of decisions in this country: Vaughan v Benalla Shire
(1891) 17 VLR 129, Ruhan v Water Conservation and Irrigation Commission (1920) 20 SR
 (NSW) 439, and McLeod v Rub-a-dub Car Wash (Morvan) Pty Ltd (unreported, 29 February
1972, Victorian Supreme Court).

Subsequent to the House of Lords’ decision in Hunter v Canary Wharf,

only one Australian court appears to have considered the issue of whether a
mere licensee has title to sue in private nuisance. In Stockwell v Victoria
[2001] VSC 497, Gillard J applied Hunter v Canary Wharf to hold that only
the owner, tenant or person with exclusive possession had title to sue in
private nuisance. However, since the plaintiff in that case was the owner of
the relevant property, whether the title of a mere licensee was sufficient did
not require direct consideration.

Who Can be Sued

Occupiers of land
25.8 A person in occupation of land from which a nuisance emanates can
be sued, not only in respect of personal acts, but also for nuisances created by
persons on the land with the occupier’s consent (Laugher v Pointer (1826) 5 B
& C 547; 108 ER 204) or for acts of persons for which permission has been
given: De Jager v Payneham & Magill Lodges Hall Inc (1984) 36 SASR 498;
Challen v McLeod Country Golf Club (2004) Aust Torts Reports ¶81-760.

[page 648]

The occupier will not be liable for a nuisance created by a person on the land
without permission unless the occupier knew, or ought to have known, of the
nuisance and failed to abate it: L’Estrange v Brisbane Gas Co [1928] St R Qd
180; Sedleigh-Denfield v O’Callaghan [1940] AC 880.

25.9 An occupier will not be liable for a nuisance created prior to

occupation in circumstances where neither the occupier nor the occupier’s
employees knew, or ought to have known, of the nuisance: Torette House Pty
Ltd v Berkman (1940) 62 CLR 637. In Montana Hotels Pty Ltd v Fasson Pty
Ltd (1986) 69 ALR 258, for example, water was found in the cellar of the
plaintiff’s hotel. It was traced to a faulty downpipe on a new building next
door, which was leased by the defendant. The Privy Council, on an appeal
from the Supreme Court of Victoria, held that the defendant was not liable in
private nuisance. It had not created the nuisance caused by the faulty
downpipe and it had not been guilty of any fault before the water was
discovered in the plaintiff’s cellar, as it neither knew nor ought to have known
of the fault in the downpipe before the water was discovered. Lord Ackner
stated (at 263):
In their Lordships’ judgment, Vincent J was entirely correct in concluding that since up to the
stage when the problem was identified, there was no finding of fault by the Appeals Board and
no basis upon which such a finding could be made, the [defendant] could not be held liable in
nuisance.

25.10 The situation will be different where the occupier has, or should
have, knowledge of the nuisance. In those circumstances, the occupier is said
to have adopted or continued the nuisance, unless reasonably prompt and
efficient steps are taken to abate it: Proprietors of Strata Plan No 14198 v
Cowell (1989) 24 NSWLR 478. In Sedleigh-Denfield v O’Callaghan [1940] AC
880 at 897, Lord Atkin stated:
It seems to me clear that if a man permits an offensive thing on his premises to continue to
offend, that is if he knows that it is operating offensively, is able to prevent it and omits to
prevent it he is permitting the nuisance to continue; in other words he is continuing it.

25.11 If an occupier takes no steps to remove a nuisance occurring

through natural causes, for example tree roots, the occupier may be liable:
Owners of Strata Plan No 13218 v Woollahra Municipal Council [2002]
NSWCA 92; Delaware Mansions Ltd v Westminster City Council [2001] 4 All
ER 737; Malliate v Sharpe [2001] NSWSC 1057; Richmond City Council v
Scantelbury [1991] 2 VR 38; Leakey v National Trust [1980] QB 485. In
Morgan v Khyatt [1964] 1 WLR 475 at 477 Lord Evershed said:
 … it has … long been established as a general proposition that an owner of land may make any
natural use of it; but also (and by way of qualification of the general rule) that if an owner of
land grows or permits the growth on his land in the natural way of trees whose roots penetrate
into adjoining property and thereby cause and continue to cause damage to buildings upon that
property, he is liable for the tort of nuisance to the owner of that adjoining property.

Landlords and tenants

25.12 A landlord will only be liable for a nuisance created by a tenant, if
the landlord actively participated in the nuisance or expressly authorised the
nuisance or it was foreseeable

[page 649]

to result from the purposes for which the property was let: Malzy v Eichholz
[1916] 2 KB 308; Peden Pty Ltd v Bortolazzo [2006] 2 Qd R 574; Lawrence v
Fen Tigers Ltd (No 2) [2015] AC 106. As to whether implied consent will be
sufficient to make the landlord liable, see Tetley v Chitty [1986] 1 All ER 663.
If the landlord has not authorised the interference and it is not the foreseeable
consequence of the letting of the premises, the tenant is the correct defendant.

25.13 A landlord may be liable to a tenant for the nuisance created by

another tenant if the lease agreement provides the landlord with the means of
controlling the activities carried out on the leased premises. In Aussie
Traveller Pty Ltd v Marklea Pty Ltd [1998] 1 Qd R 1, the plaintiff sued the
defendant landlord for the nuisance created by the business of another tenant
in the same complex. The court held that the defendant was in breach of its
implied obligation not to derogate from its grant to the plaintiff and that the
defendant had within its power a method to control the activities of the
tenant creating the nuisance. The contract of lease provided that the tenant
‘undertook not to do or permit any act or thing which might be a nuisance or
cause damage or disturbance to any other tenant or to the lessor’: at 12–13. By
failing to undertake any steps to prevent the nuisance, despite being made
aware of the problem, the defendant was liable in nuisance.

25.14 A landlord may be liable if the nuisance was in existence at the time
the property was leased out: Roswell v Prior (1701) 12 Mod 635; 88 ER 1537;
Cull v Green (1924) 27 WALR 62. The landlord will be liable if the landlord
agreed to, or reserved the right to, repair the leased property and the nuisance
resulted from a failure to do so: Wilchick v Marks [1934] 2 KB 56.

Creators of the nuisance

25.15 The creator of the nuisance, whether they are in occupation of land
or not, may be sued in nuisance. Nor must the nuisance emanate from the
defendant’s land. In Halsey v Esso Petroleum Co Ltd [1961] 2 All ER 145;
[1961] 1 WLR 683, it was held that the use of heavy trucks on a public
highway outside of the defendant’s premises could amount to a nuisance in
relation to the defendant’s neighbour. In Onus v Telstra Corporation Ltd
[2011] NSWSC 33, the defendant argued that the installation of its mobile
network telecommunications tower did not amount to an interference with
the plaintiff’s airfield, as there was no emanation from its site. The court held
that it was rare that a defendant’s use of land would amount to a nuisance
when the use of the land did not cause something to emanate, but the ‘“mere”
presence of the tower of the intended height at a close proximity to the
airfield constitutes an actionable nuisance’: at [149].
A trespasser, who creates a nuisance, can be liable in private nuisance: Esso
Petroleum Co Ltd v Southport Corporation [1956] AC 218; Fennell v Robson
Excavations Pty Ltd [1977] 2 NSWLR 486; Kraemers v Attorney-General (Tas)
[1966] Tas SR 113; Pantalone v Alaouie (1989) 18 NSWLR 119.
In Casley-Smith v F S Evans & Sons Pty Ltd (No 5) (1988) 67 LGRA 108 at
141, it was held that for a non-occupier to be liable in nuisance, ‘the situation
of nuisance relied upon must have been the product of some form of direct
control or activity which created the nuisance’. See also, Lindner v The
Corporation of the City of Marion [2015] SASC 152.

[page 650]

Rights Capable of Protection

25.16 To be an actionable nuisance, there must be an interference with a
right attached to land which the law recognises. The tort of nuisance provides
protection against material damage to the land, buildings and goods upon the
land, as well as for interference with the use and enjoyment of the land. In
Robson v Leischke (2008) 72 NSWLR 98 at [54], it was stated:
Three kinds of interference are recognised by the law as constituting a nuisance:
(a) causing encroachment on the neighbour’s land, short of trespass;
(b) causing physical damage to the neighbour’s land or any building, works or vegetation on it;
and
(c) unduly interfering with a neighbour in the comfortable and convenient enjoyment of his or
her land.

See Clerk & Lindsell on Torts 19th ed at 1165 [20–06], cited with approval in Thompson-Schwab
v Costaki [1956] 1 WLR 335 at 338; [1956] 1 All ER 652 at 653; Mendez v Palazzi (1976) 68 DLR
(3d) 582 at 589; and Owners of Strata Plan No 13218 v Woollahra Municipal Council (2002) 121
LGERA 117 at 135 [50] ….

25.17 The term ‘land’ includes rights attached to land. For example, the
law recognises the right to enjoy one’s land free from excessive noise (Sturges
v Bridgman (1879) 11 Ch D 852; Haddon v Lynch [1911] VLR 5; Cohen v City
of Perth (2000) 112 LGERA 234 at 263), but does not recognise a right to a
pleasant view: Newcastle City Council v Shortland Management Services
(2003) 57 NSWLR 173 at [89]–[90]; Shuttleworth v Vancouver Hospital
[1927] 2 DLR 573. In Bathurst City Council v Saban (No 2) (1986) 58 LGRA
201 at 206, it was stated by Young J, ‘unsightliness alone does not constitute a
nuisance’.
 The law recognises many rights associated with land that may be protected
by the action of private nuisance.

Support of land
25.18 The common law recognises that an owner of land has the right to
have their land supported by the land of the adjoining owner: Pantalone v
Alaouie (1989) 18 NSWLR 119; Dalton v Henry Angus & Co (1881) 6 App Cas
740 at 791. Therefore, the removal of lateral support from land is an
actionable nuisance: Fennel v Robson Excavations Pty Ltd (1977) 2 NSWLR
486 at 493 per Glass JA; Graff Bros Estates Ltd v Rimrose Brook Joint Sewerage
Board [1953] 2 QB 318; Barbagallo v J & F Catelan Pty Ltd [1986] 1 Qd R 245.
The law does not protect the loss of support if the land has been filled, that is,
it is not in its natural state: Sutherland Shire Council v Becker (2006) LGERA
184.

25.19 Under the common law, the right to support does not extend to
structures upon the land: Jemena Gas Networks (NSW) Ltd v Mine Subsidence
Board (2011) 243 CLR 558; 277 ALR 257. In S J Weir Ltd v Bijok (2011) 112
SASR 127, it was argued by the appellant that the subsidence to the
respondent’s land was due to the additional weight of the carport on their
land and therefore no nuisance had been committed. The court agreed that
the principle was that ‘[t]here is no natural right of support for structures (as
distinct from the natural right of support for land in its natural state)’ (at [69],
quoting Jemena Gas Networks

[page 651]

(NSW) Ltd v Mine Subsidence Board at [32], citing Dalton v Henry Angus &
Co (1881) 6 App Cas 740), but the evidence was that the land would have
subsided even if the respondent’s carport had not been there. Therefore a
nuisance had been committed.
25.20 In New South Wales, legislation has abolished the right to bring an
action in nuisance for the loss of support of land, instead imposing a duty of
care not to do anything to remove the support of land: Conveyancing Act
1919 (NSW) s 177. Legislation in Queensland and the Northern Territory
imposes an obligation not to withdraw the support of land, but does not
abolish the right to sue in nuisance for the loss of support: Property Law Act
1974 (Qld) s 179; Law of Property Act 2000 (NT) s 162.

Light
25.21 It appears that the common law does not protect the right of light:
Potts v Smith (1868) LR 6 Eq 311; Bury v Pope (1586) 78 ER 375. In England
there is a right to light in the form of an easement based upon s 3 of the
Prescription Act 1832 which recognises a right to light if the windows have
enjoyed light for a period of 20 years. Through this law of ‘Ancient Lights’,
the English law recognises that there is a right not to have light obstructed
unreasonably: Colls v Home and Colonial Stores Ltd [1904] AC 179. In
Australia, legislation has abolished the right of light by way of prescription:
Conveyancing Act 1919 (NSW) s 179; Property Law Act 1974 (Qld) s 178;
Law of Property Act 1936 (SA) s 22; Property Law Act 1958 (Vic) s 195;
Property Law Act 1969 (WA) s 121.

25.22 As society seeks alternative sources of energy, local councils may

have to address the issue of the right to light as persons with solar panels may
not be able to make the most of the panels if the sunlight on the property is
affected by a new structure or a growing tree. See, for example, Pt 5 of the
Neighbourhood Disputes Resolution Act 2011 (Qld). In California in the
United States, the state law protects homeowners’ investment in solar panels,
by deeming trees that block the sun from panels as a nuisance.

Riparian rights
25.23 At common law, any interference with the rights of a riparian owner
(the owner of land adjacent to a river or waterway) was actionable as a private
nuisance. Legislation now regulates many of the rights of such owners but,
generally, does not interfere with the common law right in relation to an
increase, for example in flooding brought about by wrongful or tortious
conduct by a neighbouring occupier: Grant Pastoral Co Pty Ltd v Thorpe’s Ltd
(1953) 54 SR (NSW) 129; see also the analysis by Windeyer J in Gartner v
Kidman (1962) 108 CLR 12.

Right of access
25.24 In Jeffrey v Honig [1999] VSC 337, a dispute about the appellant
moving cows from one property to another arose, the respondents alleging
that their access to the road was blocked and delays were experienced.
Hedigan J stated (at [25]):
Anyone living in Australia in country areas or visiting there would find the movement of cattle
on roads a commonplace, coped with by sensible management of cattle and patient driving by

[page 652]

motorists. The countervailing right asserted by the respondents is a right of access by them to
and along the road leading to their property and in their property. There can be no doubt that at
common law an owner of land adjoining the highway is entitled to access his or her land from
the highway and from his or her land to it. That right of access is a private right quite distinct
from the right to use the highway. Once he or she is on the highway they enjoy the right as a
member of the public in the ordinary way.

See also Deepcliffe Pty Ltd v Council of the City of Gold Coast (2001) 118
LGERA 117 at [12], where McMurdo P noted that there is a ‘distinct private
right enjoyed by landowners whose property adjoins the highway’.
In Broderick Motors Pty Ltd v Rothe (1986) Aust Torts Reports ¶80-059, a
disgruntled consumer protested in the form of parking a vehicle outside the
car sales yard from which it was purchased with a sign describing it as a
‘bomb’. The court held that this did not interfere with the right of entry and
remained within the law (at least for purposes of private nuisance).

Smells and fumes

25.25 The law has long recognised that an occupier of land is entitled to
enjoy their land free of unreasonable smells and fumes: Aldred v Benton
(1610) 9 Co Rep 57; 77 ER 816 (odours from pig sty); Bamford v Turnley
(1862) 3 B & S 62; 122 ER 27 (smells from brick kiln); Domachuk v Feiner
(NSWCA, Sheller JA, Giles and Simos AJJA, BC9606851, 28 November 1996,
unreported) (offensive smells from compost used for growing mushrooms);
Dobson v Thames Water Utilities Ltd [2011] EWHC 3253 (a class action by
residents was successful in relation to the odours from a sewerage plant).

Noises and vibrations

25.26 An occupier is entitled to enjoy their land free from unreasonable
noise and vibration. In Sturges v Bridgman (1879) 11 Ch D 852, the plaintiff
successfully sued in nuisance for the noise and vibration from the use of the
defendant’s pestles and mortars in his confectionary business. A Salvation
Army brass band, people singing, clapping and shouting praises was held to
be a nuisance in McKenzie v Powley [1916] SALR 1. In Cohen v City of Perth
(2000) 112 LGERA 234, the noise of the daily run of the rubbish trucks was
held to be excessive noise. In Vincent v Peacock [1973] 1 NSWLR 466, the
court awarded an injunction to restrain the defendant from singing, shouting,
whistling and using unacceptable language, as it interfered with the plaintiffs’
enjoyment of their home. See also Watson v Croft Promo-Sport Ltd [2009] 3
All ER 249 (noise emanating from motor racing on a private racetrack).

Interference with the Protected Right

25.27 Windeyer J pointed out in Hargrave v Goldman (1963) 110 CLR 40
at 59, that in most cases the nuisance is a continuing one but it is not
necessary. The nuisance can be an isolated interference, as with the single
escape of metal foil in British Celanese Ltd v A H Hunt (Capacitors) Ltd
[1969] 1 WLR 959, or a single explosion of accumulated gas as in Midwood &
Co Ltd v Manchester Corporation [1905] 2 KB 597. Davies J in Bonic

[page 653]

v Fieldair (Deniliquin) Pty Ltd [1999] NSWSC 636, suggested that a one-off
occurrence (in that case, accidental damage caused to the plaintiff’s crops by
the neighbouring defendant’s aerial spraying of its land) was more
appropriately considered according to the ordinary principles of negligence
than in private nuisance.

25.28 Where the necessity for recurrence is critical is where the plaintiff is
seeking injunctive relief (see 25.69), or where the plaintiff seeks to establish
an interference with enjoyment rather than physical damage (see 25.40).

25.29 To give rise to an action in private nuisance, an interference with the

plaintiff’s rights of possession must be actual or likely and not merely possible
or prospective.

25.30 Traditionally, the courts have made a clear distinction between:

interferences causing material damage; and
interferences with the quiet enjoyment of the use of the land.
As Lord Westbury stated in St Helen’s Smelting Co v Tipping (1865) 11 HL
Cas 642 at 650–1; 11 ER 1483 at 1486:
[I]n matters of this description it appears to me that it is a very desirable thing to mark the
difference between an action brought for a nuisance upon the ground that the alleged nuisance
produces material injury to the property, and an action brought for a nuisance on the ground
that the thing alleged to be a nuisance is productive of sensible personal discomfort … namely,
the personal inconvenience and interference with one’s enjoyment.
25.31 The tort exists to protect interests in land, not personal injuries for
which negligence as a basis of liability is far better designed: Hunter v Canary
Wharf Ltd [1997] AC 655; Transco plc v Stockport Metropolitan Borough
Council [2003] 3 WLR 1467; see also Clifford v Dove [2006] NSWSC 314 at
[33]. However, the possibility remains of an Australian court recognising
personal injury as a reasonably foreseeable consequence of property damage:
Benning v Wong (1969) 122 CLR 249 at 318 per Windeyer J.

Material damage
25.32 The damage resulting from the nuisance may be material damage,
for example killing trees through noxious copper fumes (St Helen’s Smelting
Co v Tipping (1865) 11 HL Cas 642; 11 ER 1483) or breaking windows with
golf balls (Lester-Travers v City of Frankston [1970] VR 2; Challen v McLeod
Country Golf Club (2004) Aust Torts Reports ¶81-760) or removing the
lateral support for a neighbour’s land: Fennel v Robson Excavations Pty Ltd
(1977) 2 NSWLR 486.

25.33 The damage may be material damage to chattels upon the land, for
example dust damaging stock during demolition (Harris v Carnegie’s Pty Ltd
[1917] VLR 95) or factory emissions damaging clothes hanging outside:
Halsey v Esso Petroleum Co Ltd [1961] 2 All ER 145; [1961] 1 WLR 683.

25.34 Traditionally, the courts have distinguished between material

damage caused by a defendant’s failure to act — nonfeasance — and that
caused by a defendant’s positive acts — misfeasance.

[page 654]

25.35 Nonfeasance Originally, the distinction between misfeasance and

nonfeasance was important because an action in nuisance did not extend
beyond abstaining from the creation of a nuisance. In Goldman v Hargrave
(1966) 115 CLR 458 at 657, however, the Privy Council reviewed this aspect
of the development of nuisance:
… it is only in comparatively recent times that the law has recognised an occupier’s duty as one
of a more positive character than merely to abstain from creating, or adding to, a source of
danger or annoyance. It was for long satisfied with the conception of separate or autonomous
proprietors, each of which was entitled to exploit his territory in a ‘natural’ manner and none of
whom was obliged to restrain or direct the operations of nature in the interest of avoiding harm
to his neighbours.

In Goldman v Hargrave (and see the High Court’s decision in Hargrave v

Goldman (1963) 110 CLR 40), the courts were required to determine whether
the defendant was liable for the failure to extinguish a fire in a tree when the
fire was caused by lightning and later spread to the plaintiff’s property,
causing considerable damage. In finding in the plaintiff’s favour, the courts
took into account the defendant’s knowledge, skill and resources and the fact
that he had made a partial, but ultimately unsuccessful, attempt to extinguish
the fire.
Goldman v Hargrave was applied in Leakey v National Trust [1980] QB
485, where the defendant, despite knowing of the potential danger, did
nothing to prevent soil from a hill on its land falling on to the plaintiffs’
adjacent properties. The Court of Appeal held that the principle, which in
Goldman had been applied to the spread of fire, applied also to a slip of soil
naturally on the defendant’s land. In the leading judgment, Megaw LJ said (at
526):
The defendant’s duty is to do that which it is reasonable for him to do. The criteria of
reasonableness include, in respect of a duty of this nature, the factor of what the particular man
— not the average man — can be expected to do, having regard, amongst other things, where a
serious expenditure of money is required to eliminate or reduce the danger, to his means. … But
this can only be in the way of a broad, and not a detailed, assessment; and, in arriving at a
judgment on reasonableness, a similar broad assessment may be relevant in some cases as to the
neighbour’s capacity to protect himself from damage, whether by way of some form of barrier
on his own land or by way of providing funds for expenditure on agreed works on the land of
the defendant.

See also Stockwell v Victoria [2001] VSC 497, where the defendant state was
found liable, through its employees, for its failure to prevent the attacks on
the plaintiff’s sheep by wild dogs living in an area under the state’s control. As
Gillard J stated (at [359]–[360]):
There were employees of the Department who were authorised to manage, protect and control
the Reference Area … I find that although the said employees were not responsible for creating
the nuisance, nevertheless, from 1 July 1989 through to July 1996, they had knowledge of its
existence and suffered the nuisance to continue despite the strong protestations and
representations of the plaintiff. Further, I find that the said employees knew or should have
known, as reasonable persons, that it was foreseeable that if the hazard was not eradicated or
minimised, it could cause damage to the plaintiff’s land.

25.36 Misfeasance When material damage is the result of misfeasance (a

positive act causing harm) on the defendant’s part, the traditional view has
been that the defendant was strictly liable for the results of that misfeasance
— it was considered irrelevant that the defendant took all reasonable care and
skill to prevent the thing complained of from

[page 655]

being a nuisance: St Helen’s Smelting Co v Tipping (1865) 11 HL Cas 642; 11

ER 1483; Rapier v London Tramways Co [1893] 2 Ch 588 at 600.

25.37 This traditional view was challenged by the House of Lords in

Sedleigh-Denfield v O’Callaghan [1940] AC 880. In Sedleigh-Denfield, Lord
Wright rejected the notion that liability for a nuisance is, at least in modern
law, a ‘strict or absolute liability’: at 904–5. Support for the view that liability
for misfeasance causing material damage will usually involve fault of some
kind can be found in the decision in Overseas Tankship (UK) Ltd v Miller
Steamship Co Pty Ltd (The Wagon Mound (No 2)) [1967] 1 AC 617 which
held that, similar to a negligence action, there is no liability for nuisance
unless the consequences, for which the plaintiff seeks to make the defendant
liable, were reasonably foreseeable. See also Cambridge Water Co v Eastern
Counties Leather plc [1994] 2 AC 264; [1994] 1 All ER 53.
25.38 In Australia, Lord Wright’s comments in Sedleigh-Denfield were
cited with approval by the High Court in Elston v Dore (1982) 149 CLR 480
and support for the view that fault of some kind is necessary to support an
action in nuisance causing material damage can also be found, by analogy,
with the High Court decision in Burnie Port Authority v General Jones Pty Ltd
(1994) 179 CLR 520.
In Burnie, the court held that the tort based on the rule in Rylands v
Fletcher (1866) LR 1 Ex 265; (1868) LR 3 HL 330, should be abolished in
Australia. The abandonment of the rule in Rylands v Fletcher means that a
plaintiff must establish fault on the part of the occupier of the land who has
introduced, retained or done on their land something dangerous, which is
likely to cause damage if it escapes — the occupier will no longer be strictly
liable for the consequences of the escape of the dangerous thing.
In England, in Transco plc v Stockport Metropolitan Borough Council
[2003] 3 WLR 1467, however, the House of Lords unanimously rejected
abolishing the rule in Rylands v Fletcher. In doing so, Lord Walker of
Gestingthorpe, at [110], referred to the comments of Lord Lloyd of Berwick
in Hunter v Canary Wharf Ltd [1997] AC 655 at 695, where the latter
identified three kinds of private nuisances:
… (1) nuisance by encroachment on a neighbour’s land; (2) nuisance by direct physical injury to
a neighbour’s land; and (3) nuisance by interference with a neighbour’s quiet enjoyment of his
land.

Lord Walker noted that in regard to the first and third kinds of nuisance
‘[t]here has … been some assimilation of the principles of nuisance and
negligence’: at [109]. In regard to the second — which he considered included
the rule in Rylands v Fletcher — his Lordship, in agreement with the other
members of the court, considered that there were still circumstances which
justified the retention of the rule in Rylands v Fletcher.

25.39 The question of whether the Australian High Court will abandon
strict liability for a nuisance causing material damage to a neighbour’s land
remains to be addressed by the court. However, in the joint judgment of
Gleeson CJ, Gummow, Hayne and Callinan JJ in Bankstown City Council v
Alamdo Holdings Pty Ltd (2005) 223 CLR 660 at [16], they refer:
… to a line of authority marshalled by the English Court of Appeal in Marcic v Thames Water
Utilities Ltd [[2004] 2 AC 42]. This indicates that a body such as the Council is not, without

[page 656]

negligence on its part, liable for a nuisance attributable to the exercise of, or failure to exercise,
its statutory powers.

In Sutherland Shire Council v Becker [2006] NSWCA 344, the New South
Wales Court of Appeal considered fault in the context of a nuisance action
brought against the Council as a third party responsible for indirectly causing
material damage to the landfill which constituted part of the plaintiff’s land.
The slippage occurred when landfill on the plaintiff’s neighbour’s property
became saturated by water overflowing from the defendant Council’s
drainage pipeline system. The collapse of the landfill on the neighbour’s land
removed the lateral support for the plaintiff’s landfill which consequently
collapsed, causing the plaintiff financial loss. The plaintiff’s action in nuisance
was unsuccessful because of her failure to prove that the Council was
negligent in the design and/or maintenance of the drainage pipe system.
Significantly, in Becker, the plaintiff’s action was found to be based upon the
private law of nuisance rather than the exercise or failure to exercise a
statutory power: at [114].

Interference with Enjoyment

25.40 In Walter v Selfe (1851) 4 De G & Sm 315 at 322; 64 ER 849 at 852, it
was stated:
… the inconvenience the court must protect against must not be one of mere delicacy and
fastidiousness, but must be 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, sober and simple notions among English people.

To be actionable in private nuisance, an interference with the use and

enjoyment of land that does not result in material damage, must be both a
substantial and an unreasonable interference. See St Helen’s Smelting Co v
Tipping (1865) 11 HL Cas 642 at 654; 11 ER 1483 at 1488; Southwark London
Borough Council v Tanner [1999] 4 All ER 449 at 464.

Substantial
25.41 In Munro v Southern Dairies Ltd [1955] VLR 332 at 334, Scholl J
indicated:
… there must be a substantial degree of interference with the comfort and convenience of the
occupier who complains of a private nuisance, or with some other aspect of the use or
enjoyment of his land. The interference must be so substantial as to cause damage to him.

Nevertheless, in that case, it was held that the loss of a single night’s sleep
caused by the noise of the dairy could amount to a substantial interference.
In Onus v Telstra Corporation Ltd [2011] NSWSC 33, the plaintiff was
successful in establishing that the building of the defendant’s mobile network
telecommunications tower would be an interference with the enjoyment of
his land. Permission had been given to the defendant to install the tower in
close proximity to the plaintiff’s land. The plaintiff used the land as an
airfield, catering to light aircraft, helicopters, balloonists and parachutists. It
was argued by the plaintiff that the installation of the tower would jeopardise
the safety of pilots and passengers who used the airfield. The defendant
argued that there was no substantial interference as ‘the plaintiff’s complaint
[was] confined to the users of airspace and to their inconvenience in
travelling to his land’: at [150]. Price J held that the effect of the tower, namely
the diminished utility of the land for pilot training and the loss of revenue
from reduced aircraft landings, amounted to a substantial interference: at
[150].
 [page 657]

Unreasonable
25.42 In determining whether interference occasioning substantial loss of
enjoyment is unreasonable, the courts start from a premise of ‘give and take’:
Bamford v Turnley (1862) 3 B & S 66; 122 ER 27; Kidman v Page [1959] Qd R
53. Each individual impliedly consents to reasonable ‘give and take’ so that
interferences which are trivial are treated as part of the incidents of everyday
life: Stormer v Ingram (1978) 21 SASR 93. It is not a question of whether what
the defendant is doing is unreasonable, but whether the effect of the
defendant’s conduct upon the plaintiff’s use and enjoyment of the land is
unreasonable. In Metropolitan Properties v Jones [1939] 2 All ER 202 at 205, it
was explained:
If my neighbour is going to put some bookcases in his house, or put in a new fireplace, for a day
or two I shall be exposed, no doubt, to a considerable disturbance … but the law does not regard
that as a nuisance. A man may be doing that which is necessary for his house or his own
comfort, just as I may do the same thing in my own house the following month. It is one of
those things which one has to put up with.

To determine whether the interference with use of enjoyment is

unreasonable, the court must balance the competing interests of the parties.
In determining whether an interference is unreasonable, regard may be had
to a number of factors.

25.43 Locality Locality may determine which activities are reasonable.

Industrial activities in a residential area may be unreasonable but reasonable
in a predominantly industrial area: Sturges v Bridgman (1879) 11 Ch D 852;
Clarey v Principal and Council of the Women’s College (1953) 90 CLR 170;
[1953] ALR 850; Kidman v Page [1959] Qd R 53. Veale J stated in Halsey v
Esso Petroleum Co Ltd [1961] 2 All ER 145 at 151; [1961] 1 WLR 683 at 692:
In an urban area, everyone must put up with a certain amount of discomfort and annoyance
from the activities of neighbours, and the law must strike a fair and reasonable balance between
 the right of the plaintiff on the one hand to the undisturbed enjoyment of his property, and the
right of the defendant on the other hand to use his property for his own lawful enjoyment.

In Sturges v Bridgman, the defendant confectioner had used pestles and

mortars in the back of his premises for about 20 years. The noise and
vibration did not bother the plaintiff, a doctor whose consulting rooms were
in the adjacent building. The plaintiff then built an extra consulting room at
the back of his premises and found that the noise and vibration of the
defendant’s pestles and mortars started to interfere with the use of his new
consulting room, so he sued the defendant in nuisance. The Court of Appeal
held for the plaintiff. Thesiger J, with whom James and Baggallay LJJ agreed,
said (at 865):
[W]hether anything is a nuisance or not is a question to be determined, not merely by an
abstract consideration of the thing itself, but in reference to its circumstances; what would be a
nuisance in Belgrave Square would not necessarily be so in Bermondsey …

25.44 The fact that the locality has changed over time will not prevent the
interference being unreasonable at the time the action is brought. In Munro v
Southern Dairies Ltd [1955]

[page 658]

VLR 332, the interference caused by the defendant’s stabling of horses was
actionable despite the defendant having done so since 1934. Also, compliance
with planning legislation does not necessarily prevent the activity from being
unreasonable: Hunter v Canary Wharf Ltd [1997] AC 655; Wheeler v J J
Saunders Ltd [1996] Ch 19.

25.45 Time Time will be a factor in determining reasonableness,

particularly interferences involving noise. Loud noise at night or in the early
morning may be unreasonable but reasonable at other times during the day:
Halsey v Esso Petroleum Co Ltd [1961] 2 All ER 145; [1961] 1 WLR 683; Daily
Telegraph Co Ltd v Stuart (1928) 28 SR (NSW) 291; Haddon v Lynch [1911]
VLR 230; Stoakes v Brydges [1958] QWN 5; McKenzie v Powley [1916] 5 ALR
1. For example, in Wherry v K B Hutcherson Pty Ltd (1987) Aust Torts
Reports ¶80-107, the defendant was engaged in construction at a site in the
Sydney CBD. The work caused noise and vibration which affected the offices
of the plaintiff solicitor. The court held that the noise and vibration
constituted a nuisance during ordinary office hours, but did not constitute a
nuisance outside those hours. The plaintiff was granted an injunction
restraining the defendant from making noise between the hours of 9.00 am–
1.00 pm, and between 2.00 pm–5.00 pm.

25.46 Duration The duration of an interference clearly has an impact on

the question of whether it is reasonable. How long each day and for how
many days and over what period of time are all relevant considerations:
Sedleigh-Denfield v O’Callaghan [1940] AC 880; Gartner v Kidman (1962) 108
CLR 12. Noise for a few days would be different to noise for over two months.
Similarly, noise of lesser duration can be unreasonable at night when
compared to the same noise of longer duration during the day: Munro v
Southern Dairies Ltd [1955] VLR 332.
However, interferences of long duration are not necessarily unreasonable,
as noted in Andreae v Selfridge & Co Ltd [1938] Ch 1 at 5, when the
interferences arise from construction work, ‘everybody has to put up with a
certain degree of discomfort’.

25.47 Nature of the activities The nature of the activities will also be
relevant in determining what is reasonable: Bamford v Turnley (1862) B & S
66; 122 ER 27. In a complex, modern society, there are many permutations of
conduct which test out the reasonableness of activities. For example,
unionists have long claimed the right to picket, but a picket line which
interferes with the occupier’s right of free access to property is unreasonable
and a nuisance: Dollar Sweets Pty Ltd v Federated Confectioners Association of
Australia [1986] VR 383. Similarly, the animal liberationist demonstration
forcing intending circus patrons to walk a gauntlet which put them in fear for
their safety in Animal Liberation (Vic) Inc v Gasser [1991] 1 VR 51, amounted
to a nuisance. See also McCoy Constructions Pty Ltd v Dabrowski [2001] QSC
413.

25.48 It is possible that the defendant is engaged in an activity that is in

the public’s interest, or is for the good of society. However, the social utility of
the activities does not render the alleged interference as reasonable. In Munro
v Southern Dairies Ltd [1955] VLR 332, the defendant was delivering milk, an
activity which was of some benefit to society, but delivering the milk by
horses which were not stabled was found to be unreasonable. See also Cohen v
City of Perth (2000) 112 LGERA 234.

[page 659]

25.49 Availability of alternative means Although considering the

availability of reasonably practicable alternatives is looking at the defendant’s
behaviour rather than the effect upon the plaintiff, as a court will balance
rights between the parties, evidence of reasonable alternatives will be
considered.
If there are alternatives which are reasonably practicable and open to the
defendant, this may render the means used unreasonable (McMahon v
Catanzaro [1961] QWN 22), for example in Wherry v K B Hutcherson Pty Ltd
(1987) Aust Torts Reports ¶80-107, where the building work could be
restricted to outside business hours. In Cohen v City of Perth (2000) 112
LGERA 234, the plaintiff lived in an inner city suburb in an apartment of
mixed commercial and residential premises. He sued for the interference
caused by the excessive noise caused almost daily by the defendant’s garbage
trucks. Roberts-Smith J held that, although the Council had made some effort
to accommodate the plaintiff’s complaints, he was not satisfied that all
reasonable steps had been taken to ensure that collections took place when
the excessive noise would create the least practicable interference with
amenity.

25.50 When assessing the reasonableness of alternatives, the cost of

alternative means may be a relevant factor in determining reasonableness:
Painter v Reed [1930] SASR 295 at 304.

25.51 Abnormal sensitivity Since the basis of an action in private

nuisance is the unreasonable interference caused by the defendant’s act or
omission, it follows that an action may be defeated on the grounds that the
plaintiff’s abnormal sensitivity was the real cause of the plaintiff’s loss of
enjoyment: Munro v Southern Dairies Ltd [1955] VLR 332 at 335. In Robinson
v Kilvert (1889) 41 Ch D 88, the defendant rented part of their premises to the
plaintiff who manufactured twine and paper. Subsequently, the defendant, as
part of its own business, installed heating equipment in another part of the
building. The additional heat had an adverse effect on the plaintiff’s brown
paper manufacturing process. The plaintiff was unsuccessful because the
degree of heat could not be regarded as noxious and the adverse effect was
peculiar to its type of business. Lopes LJ stated (at 96):
A man who carries on an exceptionally delicate trade cannot claim because it is injured by his
neighbour doing something lawful on his property, if it is something which would not injure
anything but an exceptionally delicate trade.

See also Marsh v Baxter [2015] WASCA 169, where the Court of Appeal of
Western Australia held the fact that the appellants put their land to an
abnormally sensitive use, did not mean that they could ‘impose limitations
ion the operations if their neighbours to an extent greater than would
otherwise be the case’: at [785]. In that case, the appellants suffered pure
economic loss when their organic farm was decertified after their crops were
contaminated by the respondent’s canola crop.

25.52 Motive Although intention is not an element of nuisance, the

motive of the defendant may be relevant as part of the give and take principle:
Christie v Davey [1893] 1 Ch 316; Hollywood Silver Fox Farm Ltd v Emmett
[1936] 2 KB 468; Fraser v Booth (1949) 50 SR (NSW) 113; Hargrave v
Goldman (1963) 110 CLR 40; Goldman v Hargrave (1966) 115 CLR 458 (PC);
Stoakes v Brydges [1958] QWN 5; Pratt v Young (1952) 69 WN (NSW) 214.

[page 660]

In Christie v Davey, the defendant claimed that when they were knocking
on the party wall between their residence and the plaintiff’s, and ‘beating
trays, whistling, shrieking, and imitating what was being played’ as the
plaintiff gave music lessons and her family played musical instruments, they
were simply amusing themselves with any musical instrument they chose.
North J held (at 475):
In my opinion the noises which were made in the Defendant’s house were not of a legitimate
kind. They were what, to use the language of Lord Selborne in Gaunt v Fynney [(1872) LR 8 Ch
App 8], “ought to be regarded as excessive and unreasonable”. I am satisfied that they were
made deliberately and maliciously for the purpose of annoying the Plaintiffs. If what has taken
place occurred between two sets of persons both perfectly innocent, I should have taken an
entirely different view of the case. But I am persuaded that what was done by the Defendant was
done only for the purpose of annoyance, and in my opinion it was not a legitimate use of the
Defendant’s house to use it for the purpose of vexing and annoying his neighbours.

This passage was quoted with approval by Macnaghten J in Hollywood

Silver Fox Farm, where the plaintiff was a silver fox breeder and erected a
large sign to that effect on its land. The defendant was about to develop
adjoining land as a building estate and repeatedly requested the plaintiff to
remove the sign. Ultimately, he threatened disruption during the fox breeding
season by firing shots near the breeding pens. He caused his son to do just
that and the plaintiff was granted damages and an injunction.
Therefore, if the nuisance is committed with the intention of causing harm
to the plaintiff, what may be reasonable may become unreasonable, even if the
plaintiff is of abnormal sensitivity: Christie v Davey; Hollywood Silver Fox
Farm Ltd v Emmett.
 In contrast, in Fraser v Booth (1949) 50 SR (NSW) 113, the defendant was
held not to be liable in nuisance for letting off firecrackers with the intention
of scaring the plaintiff’s homing pigeons. The court found that the
defendant’s motivation was that she could no longer tolerate the commotion
caused by the birds above her house. The court held that the defendant’s
actions were found not to be malicious or spiteful acts done simply to cause
damage to the plaintiff; they had been carried out while under the stress of
annoyance from an existing nuisance (the keeping of the pigeons), in the
hope it would alleviate the problem.

Damage
25.53 In nuisance, the damage is either the material damage to the land
itself or the chattels upon it, or the interference with the plaintiff’s use and
enjoyment of the land: Barbagallo v J & F Catelan Pty Ltd [1986] 1 Qd R 245;
Oldham v Lawson (No 1) [1976] VR 654.
The damage suffered by the plaintiff must have been caused by the
nuisance and be a reasonably foreseeable consequence of the nuisance:
Fennell v Robson Excavations Pty Ltd [1977] 2 NSWLR 486. See also Overseas
Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (Wagon Mound (No 2))
[1967] AC 617 at 640, where Lord Reid stated:
It is not sufficient that the injury suffered by the [plaintiff] … was the direct result of the
nuisance if that injury was in the relevant sense unforeseeable.

In Gales Holdings Pty Ltd v Tweed Shire Council (2013) 85 NSWLR 514, the
inadequate provision for stormwater by the Council led to a pond being
created which became the

[page 661]

habitat of a protected species, Wallum froglets. The property owner sued in

nuisance as due to the protected species, the development approval of the
land included a condition to protect the habitat, resulting in a decrease in the
value of the land. The court held that the development of a Wallum froglet
habitat was not reasonably foreseeable in the circumstances: at [261].

Onus of Proof
25.54 Once the plaintiff has established title to sue and a prima facie
interference with the use and enjoyment of the land or related rights, it is for
the defendant to demonstrate reasonableness and/or any defence: Kraemers v
Attorney-General (Tas) [1966] Tas SR 113; Radstock Co-operative & Industrial
Society Ltd v Norton-Radstock Urban District Council [1968] Ch 605.

Defences
Statutory authority
25.55 Many activities which might give rise to a common law action in
nuisance are authorised by statute. The defence of statutory authorisation
recognises that many activities which are essential or desirable for society
cannot be carried out without creating a nuisance under the common law.

25.56 In establishing the defence, the critical question is whether the

legislature intended the statute to authorise activities which, at common law,
would constitute a nuisance. In Allen v Gulf Oil Refining Ltd [1981] AC 1001
at 1011, Lord Wilberforce stated:
We are here in the well charted field of statutory authority. It is now well settled that where
Parliament by express direction or by necessary implication has authorised the construction and
use of an undertaking or works, that carries with it an authority to do what is authorised with
immunity from any action based on nuisance. The right of action is taken away (see
Hammersmith and City Railway Co v Brand (1869) LR 4 HL 171, 215 per Lord Cairns). To this
there is made the qualification, or condition, that the statutory powers are exercised without
“negligence” — that word here being used in a special sense so as to require the undertaker, as a
condition of obtaining immunity from action, to carry out the work and conduct the operation
 with all reasonable regard and care for the interests of other persons (see Geddis v Proprietors of
Bann Reservoir (1878) 3 App Cas 430, 455 per Lord Blackburn). It is within the same principle
that immunity from action is withheld where the terms of the statute are permissive only, in
which case the powers conferred must be exercised in strict conformity with private rights (see
Metropolitan Asylum District [Managers] v Hill (1881) 6 App Cas 193).

25.57 The burden lies on those alleging the intention to take away the
private right to prove that such an intention appears from the statute:
Metropolitan Asylum District Managers v Hill (1881) 6 App Cas 193; Allen v
Gulf Oil Refining Ltd [1981] AC 1001; Lester-Travers v City of Frankston
[1970] VR 2; Cohen v City of Perth (2000) 112 LGERA 234; Melaleuca Estate
Pty Ltd v Port Stephens Council [2006] NSWCA 31.
In Cohen v City of Perth, the defendant acknowledged that, in carrying out
its authorised garbage collection duties, it had exceeded the noise levels
specified in the relevant noise regulations. It, nevertheless, argued that upon
the true construction of the subject, scope

[page 662]

and purpose of the Act and regulations, the legislation made comprehensive
and exhaustive provision for the remedies that may be sought in respect of
noise emissions which exceeded the statutorily prescribed standard. Roberts-
Smith J rejected this interpretation of the legislation and found that the
plaintiff should be successful, inter alia, in his actions for private and public
nuisance.

25.58 The defence requires that the nuisance is an ‘inevitable consequence

of the authorised undertaking’: Bankstown City Council v Alamdo Holdings
Pty Ltd (2005) 223 CLR 660 at [16]; Southern Properties (WA) Pty Ltd v
Executive Director of the Department of Conservation and Land Management
(2012) 42 WAR 287 at [121]. However, a distinction is made between
statutory provisions that require an activity to be carried out and those that
permit an activity to be carried out: Southern Properties (WA) Pty Ltd v
Executive Director of the Department of Conservation and Land Management
(2012) 42 WAR 287 at [122]. If the statute requires the act to be carried out,
any resulting nuisance will be authorised unless the nuisance was created by
the negligence of the defendant: Bankstown City Council v Alamdo Holdings
Pty Ltd (2005) 223 CLR 660 at [16]; Benning v Wong (1969) 122 CLR 249 at
324–37. Therefore, if the defendant exercised reasonable care in carrying out
the required and authorised activity, the defence will succeed.
In contrast, if the nuisance is created by an act permitted by statute, for the
defence to apply the defendant must prove that the activity could not be
carried out without creating the nuisance and there was no negligence
involved: Southern Properties (WA) Pty Ltd v Executive Director of the
Department of Conservation and Land Management (2012) 42 WAR 287 at
[123].

Contributory negligence
25.59 It is possible that a plaintiff may sue in negligence and nuisance for
the same interference. Therefore claims of contributory negligence are
allowed in respect of nuisance. Contributory negligence on the part of the
plaintiff provided a complete defence under the common law, but now under
the apportionment legislation it will only lead to a reduction in damages:
Civil Law (Wrongs) Act 2002 (ACT) s 102; Law Reform (Miscellaneous
Provisions) Act 1965 (NSW) s 9(1); Law Reform (Miscellaneous Provisions)
Act 1956 (NT) s 16(1); Law Reform Act 1995 (Qld) s 10(1); Law Reform
(Contributory Negligence and Apportionment of Liability) Act 2001 (SA) s 7;
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). See also Almeroth v W E Chivers & Sons Ltd [1948] 1 All ER 53; Trevett v
Lee [1955] 1 WLR 113; [1955] 1 All ER 406.

Easement and prescription

25.60 Under the common law, a defendant may claim a prescriptive right
to continue a nuisance if they can establish that they have committed the
interference for more than 20 years: Sturges v Bridgman (1879) 11 Ch D 852;
Miller v Jackson [1977] QB 966. This is on the basis that the defendant’s
interference may amount to an easement, and the right has been acquired as
if with the permission of the plaintiff. Prescriptive rights in respect of Torrens
land are recognised in Tasmania, Victoria and Western Australia. In New
South

[page 663]

Wales and South Australia, it has been held that in certain circumstances a
prescriptive right may arise. In the Australian Capital Territory, the Northern
Territory and Queensland, the position is uncertain.

Consent
25.61 There is no implied consent by a plaintiff who has come to the
nuisance: see 25.64. To prove consent as a defence, the defendant must prove
that the plaintiff consented to the interference.

Acts of another
25.62 In Sedleigh-Denfield v O’Callaghan [1940] AC 880, it was noted by
the court that it was a defence to a nuisance action if the interference
complained of was due to an act of God. In the same case it was held that a
defendant would not be liable if the nuisance was created by a third party and
the defendant had no knowledge (actual or constructive) of the nuisance: see
25.8.

Necessity
25.63 As it is in trespass, if the defendant created the nuisance when acting
to prevent a threat of imminent harm, the defence of necessity will apply: Esso
Petroleum Co Ltd v Southport Corporation [1956] AC 218: see 6.39.

What is not a defence

25.64 It is no defence to an action in nuisance that the plaintiff ‘came to
the nuisance’: Bliss v Hall (1838) 4 Bing (NC) 183; 132 ER 758; Sturges v
Bridgman (1879) 11 Ch D 852. In Miller v Jackson [1977] QB 966, it was held
to be no defence that the plaintiffs had moved into a house adjacent to a
cricket field. It made no difference that the houses had been built around the
existing cricket field. See also Lawrence v Fen Tigers Ltd [2011] EWHC 360
(QB).

25.65 A defendant cannot defeat a claim in nuisance by jus tertii (someone

other than the plaintiff has better title to the land: see 6.45): South Australian
Co v Corporation of the City of Port Adelaide [1914] SALR 16; Paxhaven
Holdings Ltd v Attorney-General [1974] 2 NZLR 185.

25.66 The fact that the activities of the defendant are for the benefit of
society does not provide a defence: Munro v Southern Dairies Ltd [1955] VLR
332. It is no defence that the defendant’s act would not amount to nuisance
were it not for others doing the same thing (Pride of Derby and Derbyshire
Angling Association Ltd v British Celanese Ltd [1953] Ch 149) or that the
interference is of common occurrence in the locality: St Helen’s Smelting Co v
Tipping (1865) 11 HL Cas 642; 11 ER 1483.

Remedies
25.67 The remedies available for nuisance are the self-help remedy of
abatement, injunction and damages.

[page 664]
Abatement
25.68 The law allows a plaintiff to abate the nuisance as a self-help remedy,
abatement being the ‘summary removal or remedying of a nuisance by the
person injured without having recourse to legal proceedings’: Farley & Lewers
Ltd v Attorney-General (NSW) (1962) 63 SR (NSW) 814 at 817. However,
abatement must be used with caution to ensure the plaintiff is not exposed to
actions in trespass for excessive exercise of the right when removing the
nuisance: Lemmon v Webb [1895] AC 1; Traian v Ware [1957] VR 200;
Mayor, Alderman and Burgesses of the Borough of Colchester v Brooke (1847)
7 QB 339. In Sedleigh-Denfield v O’Callaghan [1940] AC 880 at 899–900, it
was stated:
The remedy of abatement inevitably tends to disorder, and has been on many occasions spoken
of with discouragement. It affords no remedy at all for damage actually done; it never was
intended for any purpose but to prevent repetition; or in some cases, it may be, to prevent
damage before it occurred.

In Lord v McMahon [2015] NSWSC 1619 at [192], the limits on the remedy
of abatement were explained:
The law of abatement of nuisance is clear. There is no privilege of entry to abate a nuisance
unless a mandatory injunction would be issued to achieve the same result. Otherwise a person
would be able to attain a particular end by acts of self-redress, which end might otherwise have
been denied if the person had recourse to judicial process. The law shows a strong tendency to
deprecate self-help and insists on notice as a pre-requisite: Lagan Navigation Co v Lambeg
Bleaching Dyeing and Finishing Co [1927] AC 226. But no notice is necessary if the abatement
does not involve entry onto the other person’s land, or is required in an emergency: Lemmon v
Webb [1894] 3 Ch 1; [1895] AC 1 and Jones v Williams (1843) 11 M & W 176; 152 ER 764.

Injunction
25.69 As a nuisance infringes the plaintiff’s rights, it is usual that an
injunction will be granted: Pride of Derby and Derbyshire Angling Association
Ltd v British Celanese Ltd [1953] Ch 149 at 181. To order an injunction, the
court must be convinced that an award of damages would not be an adequate
remedy, for example if the nuisance is continuing. As this remedy is
discretionary, public interest and other factors may have to be considered in
the exercise of the court’s discretion: Miller v Jackson [1977] QB 966; Cohen v
City of Perth (2000) 112 LGERA 234.

25.70 A court may award a quia timet injunction (threatened or potential

nuisance); an interlocutory injunction (to restrain the act, pending
determination of the issue); or mandatory injunction (to remove the
nuisance).
In Kestrel Coal Pty Ltd v Construction, Forestry, Mining and Energy Union
[2001] 1 Qd R 634 at [32]–[34], in regard to the defendant’s picketing of the
plaintiff’s mining operations, Chesterman J stated:
In the event that the offending conduct did recur the plaintiffs would suffer substantial
disruption to their businesses. As well as lost production, which may or may not be
compensable in damages, severe distress would be occasioned to individual employees subjected
to further

[page 665]

bouts of bullying. The plaintiffs seek to protect not just their economic interests but the basic
individual rights of their employees to travel freely along a public highway and to go to work
without fear.

There is no countervailing factor. The injunction will not cause any inconvenience or hardship
to the defendants. They will not be prevented from engaging in any lawful protest or from
expressing their disapproval of the manner in which the plaintiffs conduct business. The
injunction will only prevent the defendants from doing what they have no right to do, closing a
public road, and impeding the ordinary passage of workers intent on earning a livelihood.

Also relevant to the exercise of the discretion is the point that an injunction though permanent
in form may be set aside at any time. … The injunction will not necessarily operate as a
perpetual restraint against the defendants. Should future circumstances indicate that an
injunction is no longer appropriate they may apply to have it set aside. The risk that the
injunction may cause some particular hardship is thereby diminished.

See Jackson v Normanby Brick Co (1899) 1 Ch 438; Shelfer v City of London

Electric Lighting Co [1895] 1 Ch 287; Sturges v Bridgman (1879) 11 Ch D 852;
Adams v Shire of Taringa [1927] QSR 163; Bankstown City Council v Alamdo
Holdings Pty Ltd (2005) 223 CLR 660.

Damages
25.71 Common law damages are available for damage resulting from the
nuisance: Grosvenor Hotel Company v Hamilton [1894] 2 QB 836 at 840. As
damage in nuisance may be material damage to chattels (Moss v Christchurch
Rural District Council [1925] 2 KB 750), to the land or an interference with a
recognised right, compensatory damages are awarded.
At common law, the remedy of damages is only available once damage has
occurred. However, damages are available also in equity, in lieu of, or in
addition to, an injunction: Shelfer v City of London Electric Lighting Co [1895]
1 Ch 287 at 322–3. Accordingly, since it is possible to obtain a quia timet
injunction to restrain a threatened nuisance, it is possible to obtain equitable
damages where damage has not yet occurred.

25.72 The damage compensated must be the foreseeable consequence of

the nuisance. Therefore, it may be possible to be compensated for personal
injury (Benning v Wong (1969) 122 CLR 249) and if the land affected operates
a business, a claim for loss of profits may be made: see Hunter v Canary
Wharf Ltd [1997] AC 655; Robson v Leischke (2008) 72 NSWLR 98 at [216].
See also Winky Pop Pty Ltd v Mobil Refining Australia Pty Ltd [2015] VSC
348 at [9], where the plaintiffs claimed damages for loss of opportunity to
develop the land affected by the nuisance but were unsuccessful (affirmed in
Winky Pop Pty Ltd v Mobil Refining Australia Pty Ltd [2016] VSCA 187).

25.73 Material damage As the aim of compensatory damages is to place

the plaintiff in the position as if no tort had been committed (Butler v Egg and
Egg Pulp Marketing Board (1966) 114 CLR 185), there is no set rule as to how
damages for material damage to land are to be assessed. In Evans v Balog;
Evans v Progress & Securities Pty Ltd [1976] 1 NSWLR 36 at 39, it was held,
‘proper assessment is determined by the circumstances of the case and by the
overriding requirements of what is reasonable’. See also Fish Steam Laundry
Pty Ltd

[page 666]

v Col Johnson Electrics Pty Ltd [1992] 2 Qd R 585 at 591, where it was noted
that damages must be assessed in a realistic way.

25.74 Damages may be awarded to represent the decrease in the value of

the land (Barbagallo v J & F Catelan Pty Ltd [1986] 1 Qd R 245) or the cost of
reinstatement: Jones v Shire of Perth [1971] WAR 56. Evidence as to the cost
of the reinstatement in comparison to the decrease in value of the land is
relevant, as well as the nature of the damage. In Evans v Balog; Evans v
Progress & Securities Pty Ltd [1976] 1 NSWLR 36, the defendant’s nuisance
had the effect that the plaintiff’s home was lost. Despite the fact that the cost
of reinstatement was greater than the decrease in value of the land, the court
awarded the cost of reinstatement finding that this was reasonable in the
circumstances. Samuel JA stated (at 40):
The disproportion in question in cases of this kind are not always to be revealed by arithmetical
comparison. The cost to a defendant of competing measures is a significant factor. But it is but
one ingredient in the calculation of whether the plaintiffs’ claim is reasonable or not. There are
cases, and this, in my opinion, is one, where the nature of the plaintiffs’ loss is such that there is
only one mode of fairly repairing it. If that turns out to be more expensive than another, the
wrongdoer has no one but himself to blame.

If reinstatement of the property is not possible, the court will award the
decrease in the value: see Fish Steam Laundry Pty Ltd v Col Johnson Electrics
Pty Ltd [1992] 2 Qd R 585 at 588 per Dowset J; Winky Pop Pty Ltd v Mobil
Refining Australia Pty Ltd [2015] VSC 348.

25.75 Use and enjoyment of land In respect of interferences with use

and enjoyment of land, damages are assessed with reference to the
inconvenience suffered by the plaintiff. In Bone v Seale [1975] 1 All ER 787 at
793; [1975] 1 WLR 797 at 803, it was observed, ‘[i]t is difficult to find an
analogy to damages for interference with the enjoyment of property’. In that
case, the plaintiffs suffered from the odours from the defendants’ pig farm
and the court granted an injunction and awarded damages for the loss of
amenity. Scarman LJ stated (at All ER 795; WLR 805):
… when one is removed from the world of pecuniary loss and is attempting to measure damages
for non-pecuniary loss, an element in reasonableness is the fairness of the compensation to be
awarded. There must be moderation; some attention must be paid to the rights of the offending
defendant as well as to the rights of the injured plaintiff.

As the interference is with the use and enjoyment of land, damages are not
awarded for any decrease in the value of the land unless there is material
damage: McKenzie v Powley [1916] SALR 1 at 21.

Limitation Period
25.76 The relevant limitation period will depend upon the type of damage
suffered by the plaintiff. If there is material damage to the property, the
plaintiff must commence the nuisance action within six years of the damage
being suffered, unless it is in the Northern Territory where the limitation
period is three years: Limitation Act 1985 (ACT) s 11(1); Limitation Act 1969
(NSW) s 14(1)(b); Limitation Act 1981 (NT) s 12(1)(b); Limitation of

[page 667]

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).
However, many cases of nuisance involve a continuing interference. This
allows the plaintiff to commence the action at any time during the
continuance and recover for all damage up to that time: Earl of Harrington v
Derby Corporation [1905] 1 Ch 205. If the plaintiff is claiming for personal
injury, the nuisance action must be commenced within three years of the
damage: Limitation Act 1985 (ACT) s 16B(2); Limitation Act 1969 (NSW) ss
18A and 50C; Limitation Act 1981 (NT) s 12(1)(b); Limitation of Actions Act
1974 (Qld) s 11; Limitation of Actions Act 1936 (SA) s 36; Limitation Act
1974 (Tas) s 5(1); Limitation of Actions Act 1958 (Vic) s 5(1AA); Limitation
Act 2005 (WA) s 13(1). See Chapter 14.

3 Public Nuisance
25.77 In Wallace v Powell (2000) 10 BPR 18,481 at [32], Hodgson CJ
described a public nuisance as ‘an act or omission which materially affects the
reasonable comfort and convenience of the life of a class of the public’.
The elements of the tort of public nuisance are:
the plaintiff must have title to sue;
there must be a substantial and unreasonable interference with a public
right; and
damage.
As with private nuisance, consideration as to the proper defendant is
necessary. See also R v Rimmington [2006] 1 AC 459 at [7] and [36], where it
was confirmed that the crime and tort of public nuisance have the same
elements.

Title to Sue
25.78 Since the tort of public nuisance is concerned with the rights of the
public in general, it is usually the Attorney-General who seeks relief, as a
representative of the public interest. In Attorney-General v PYA Quarries Ltd
[1957] 2 QB 169 at 191, Lord Denning stated that the test is whether the
nuisance is:
… so widespread in its range or so indiscriminate in its effect that it would not be reasonable to
 expect one person to take proceedings on his or her own responsibility to put a stop to it, but
that it should be taken on the responsibility of the community at large.

25.79 The Attorney-General may consent to a relator action, whereby a

private individual brings an action in the name of the Attorney-General, for
example Attorney-General; Ex rel Pratt v Brisbane City Council [1988] 1 Qd R
346.
It is possible for an individual member of the public to bring a private
action. They need not have an interest in land that is affected by the public
nuisance, but must establish that, as a result of the defendant’s interference
with a public right, the individual has suffered particular damage over and
above that suffered by the general public: Walsh v Ervin [1952]

[page 668]

VLR 361; McFadzean v Construction, Forestry, Mining and Energy Union

(2007) 20 VR 250 at 284; Onus v Telstra Corporation Ltd [2011] NSWSC 33 at
[130]. In Walsh v Ervin, the plaintiff and defendant were farmers who owned
land divided by a roadway. The defendant placed some fences on the roadway
and ploughed up a portion of the road to plant crops. This caused
interference to the plaintiff’s use of the road and access to a portion of his
property. In finding for the plaintiff, Scholl J summarised the applicable
principles:
The conclusions of law which I have above stated on this branch of the case may now be
summarized:
1. An individual person or corporation cannot sue in his or its own name in respect of
a nuisance to a public highway, except for “particular damage” occasioned to him
or it thereby.
2. “Particular damage” is not limited to “special damage” (in the sense of actual
pecuniary loss).
3. It may consist of proved general damage, for example, inconvenience and delay —
as in the present case — provided that it is substantial, that it is direct and not
consequential, and that it is appreciably greater in degree than any suffered by the
 general public: at 371.

25.80 Substantial inconvenience, greater in extent than that suffered by the

general public, may be sufficient to be particular damage: Harvey v Shire of St
Arnaud (1879) 5 VLR 315; Walsh v Ervin [1952] VLR 361. Physical injury
(Castle v St Augustine’s Links Ltd (1922) 38 TLR 615) and the loss of custom
to business premises may also be sufficient: Lyons, Sons & Co v Gulliver
[1914] 1 Ch 631.

Who Can be Sued?

25.81 Responsibility for the creation of a public nuisance devolves upon
anyone who creates it, whether or not the person is in occupation of the land
from which it emanates: Kraemers v Attorney-General (Tas) [1966] Tas SR
113; Ku-ring-gai Municipal Council v Bonnici [2002] NSWCA 313. As public
nuisance is not limited to protection of rights associated with the occupation
of land, the interference may not involve the defendant’s occupation of land.

Owner and occupier of land

25.82 A landowner or occupier can be liable in public nuisance if they
created the nuisance or if they continued or adopted the nuisance: Lynch v
Mudgee Shire Council (1981) 46 LGRA 204; Sedleigh-Denfield v O’Callaghan
[1940] AC 880 at 894: see 25.8.
An occupier may assume responsibility for nuisance-creating conduct of
third parties both on the land (White v Jameson (1874) LR 18 Eq 303) or
outside it, if the landowner has attracted them there: see R v Moore (1832) 3 B
& Ad 184; 110 ER 68.

Landlord and tenant

25.83 A landlord of property from where the public nuisance emanates
will not be liable unless they consented to the activity or the nuisance is the
result of the purpose for which
 [page 669]

the property was let. Otherwise the tenant creating the nuisance will be liable:
Williamson v Friend (1901) 1 SR (NSW) (Eq) 133.

Public authority
25.84 The common law has traditionally held that public authorities are
not responsible for public nuisances arising from nonfeasance, that is, a
failure to act: East Suffolk Catchment Board v Kent [1941] AC 74. Thus,
drainage authorities were not accountable for the inadequacy of pre-existing
sewers in Essendon Corporation v McSweeney (1914) 17 CLR 524. If the
interference with the public right arises from an act of misfeasance, then it is
possible the authority will be liable in public nuisance.
However, the tort of public nuisance by public authorities acting as road
authorities has been subsumed by negligence: Brodie v Singleton Shire
Council; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512; 180 ALR
145. Originally, a public authority’s duty to maintain highways was based in
nuisance not negligence, and highway or road authorities (all bodies
responsible for the construction and maintenance of public roads) were
immune from suit for a failure to maintain public roads: Sydney Municipal
Council v Bourke [1895] AC 433. However, a majority of the High Court in
Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council at
[116]–[129] stated that the liability of public authorities acting as highway
authorities in public nuisance had been absorbed by the negligence action.
See also Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22; 233
ALR 200 at [26].
As discussed in Chapters 10 and 11, the civil liability legislation in some
jurisdictions has modified the common law in regards to liability in
negligence of public authorities acting as road authorities.
Interference with a Public Right
25.85 Unlike private nuisance, where the interference must be with a
recognised right attached to land, in public nuisance the interference must be
with a public right. A public right is one that is enjoyed by all members of the
public, not specific individuals, for example the right of access to public roads
and footpaths. In Jan De Nul (UK) Ltd v AXA Royale Belge SA (formerly NV
Royale Belge) [2000] 2 Lloyd’s Rep 700 at [37], it was noted:
… a person who unlawfully obstructs the exercise of rights enjoyed by the public at large
commits a public nuisance. One of the most common modern examples is obstruction of the
highway over which all members of the public have a right to pass and repass.

In Railtrack plc v Wandsworth London Borough Council [2001] EWCA Civ

1236, there was an interference with the public’s right to use the footpath
under a bridge. The bridge owner was found liable in public nuisance for its
failure to prevent pigeons roosting on the bridge in circumstances where the
birds’ droppings caused inconvenience and discomfort to the members of the
public who used the footpath under and near the bridge. However, the
interference must be more than general inconvenience: Walsh v Ervin [1952]
VLR 361; Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire
Council (2001) 206 CLR 512; 180 ALR 145.

[page 670]

Other public rights include the right to ‘pass and repass’ over rivers (Tate
& Lyle Industries Ltd v Greater London Council [1983] 2 AC 509 at 537); the
right to not be subjected to excessive noise (East Dorset District Council v
Eaglebeam Ltd [2006] EWHC 2378, noise created by motocross racing
ground), odour (Benjamin v Storr [1874] LR 9 CP 400), vibration and dust
(Attorney-General v PYA Quarries Ltd [1957] 2 QB 169), and pollution.

25.86 Public rights may also be infringed if there is a failure to ‘discharge a

duty imposed by law, the effect of which is to endanger the life, health,
property, morals or comfort of the public, or to obstruct the public in the
exercise or enjoyment of rights common to the public at large’: Jan De Nul
(UK) Ltd v AXA Royale Belge SA (formerly NV Royale Belge) at [37] referring
to R v Shamrock [1994] QB 279 at 283 and Attorney-General v PYA Quarries
Ltd [1957] 2 QB 169 at 184.

25.87 To be an actionable nuisance, a class of the public must be affected.

This is a question of fact and it is not necessary that every member of the class
with the public right be affected. Romer LJ in Attorney-General v PYA
Quarries Ltd [1957] 2 QB 169 at 184 stated:
… the question whether the local community within that sphere comprises a sufficient number
of persons to constitute a class of the public is a question of fact in every case. It is not necessary,
in my judgment, to prove that every member of the class has been injuriously affected; it is
sufficient to show that a representative cross-section of the class has been so affected for an
injunction to issue.

In Ball v Consolidated Rutile Ltd [1991] 1 Qd R 524, the plaintiffs argued

that the slippage of a sand dune interfered with their public right to fish in the
affected area. Ambrose J held that there was no public right to fish, stating (at
543):
[T]he fishing licences which permitted the holders thereof lawfully to catch prawns with nets
cannot be said to give those holders any right whether public or private to have the fishing
grounds where they fish pursuant to such licences kept free of material of the sort deposited in
Moreton Bay by the slippage in issue. It cannot be said therefore that in any relevant sense the
right of the plaintiffs to take prawns by commercial nets of designated size and design is any
different from the right of any other members of the public to take prawns or fish without using
such nets.

Substantial and Unreasonable Interference

25.88 The interference must be both substantial and unreasonable, since
the doctrine of ‘give and take’ applies to public nuisance as much as to private
nuisance: Harper v G N Haden & Sons Ltd [1933] Ch 298; Trevett v Lee [1955]
1 WLR 113; Maitland v Raisbeck [1944] KB 689.
25.89 An occupier of land adjoining a highway will not be liable in public
nuisance for obstruction for the purpose of his or her occupation to an extent
deemed reasonable: Harper v G N Haden & Sons Ltd [1933] Ch 298. It is
reasonable for a retailer to carry on a legitimate business notwithstanding the
attraction of a crowd causing obstruction to the highway, provided that, if
there are reasonable means within the retailer’s control to prevent the
congregation, they are adopted: Silservice Pty Ltd v Supreme Bread Pty Ltd
(1949) 50 SR (NSW) 127. See also Johnson v Kent (1975) 132 CLR 164; 5 ALR
201. It is otherwise if the nature of the business or

[page 671]

its manner of conduct attracts a large number of people without steps being
taken to avoid an obstruction: Lyons, Sons & Co v Gulliver [1914] 1 Ch 631;
Fabbri v Morris [1947] 1 All ER 315; Wagstaff v Edison Bell Phonograph
Corporation (1893) 10 TLR 80.
In Deepcliffe Pty Ltd v Council of the City of Gold Coast (2001) 118 LGERA
117, the plaintiffs owned and operated a successful restaurant. They alleged
they had suffered a severe downturn in profits due to the defendant’s
unlawful action in reducing the maximum parking limit in the streets near
the restaurant from two hours to one hour. The plaintiffs sued, inter alia, in
public nuisance, claiming an unlawful interference with their use and
enjoyment of the land on which the restaurant was located. Rejecting the
plaintiff’s appeal Williams JA, with whom Helman J agreed, stated (at [66]):
I cannot see that the appellants here can make out a case that they were denied free
uninterrupted access to the roadway by the conduct of the respondents in imposing (or
purporting to impose) the parking restriction in question. True, the parking restrictions were in
adjacent streets, but it cannot be said that access to and from the roadway was denied or
seriously impaired.

Onus of Proof
25.90 Once the plaintiff establishes the nuisance and the defendant is
shown to have been its cause, the legal burden of proof is transferred to the
defendant to provide an excuse: Esso Petroleum Co Ltd v Southport
Corporation [1956] AC 218.

Defences
25.91 The defences available to an action of public nuisance are the same
as those for private nuisance: see 25.55ff. However, prescription is not
available as a defence.

Remedies
25.92 The remedies available for public nuisance are the same as those for
private nuisance: see 25.67ff.
In relation to abatement, it should be noted that the right to self-help in
public nuisance is even more restricted than it is for private nuisance, since it
must be shown by the person abating that he or she has suffered greater
damage than the general public: Alexander v Mayor and Corporation of
Sydney (1861) 1 SCR (NSW) App 26.

4 A Comparison of Nuisance and

Negligence
25.93 A single set of circumstances can give rise to liability in nuisance
and negligence provided the elements of each are satisfied. The different,
although not mutually exclusive, range and focus of each of the torts is
reflected in the following descriptions:
A private nuisance consists of ‘an unlawful interference with a person’s
 use or enjoyment of land, or some right over, or in connection with it’:
Hargrave v Goldman (1963) 110 CLR 40 at 49 per Windeyer J.
A public nuisance ‘materially affects the reasonable comfort and
convenience of life of a class of her Majesty’s subjects’: Attorney-
General v PYA Quarries Ltd [1957] 2 QB 169 at 184 per Romer LJ.

[page 672]

Negligence involves the existence of a duty of care owed by the

defendant to the plaintiff, unreasonable behaviour towards the plaintiff
in the situation in which the duty of care exists, and damage to the
person, to whom the duty is owed, resulting from the breach, provided
such damage is not too remote: Donoghue v Stevenson [1932] AC 562.
There are numerous cases in which both private or public nuisance and
negligence are made out. In Goldman v Hargrave (1966) 115 CLR 458, the
Privy Council held that the appellant was liable in nuisance and negligence
for the fire which spread from his land to his neighbour’s. See also Miller v
Jackson [1977] QB 966 at 985–6.

Historical Development
25.94 One explanation for differences and overlaps between these actions
on the case resides in their respective historical development. The assize of
nuisance (beginning quaestus est nobis) separated from the assize of novel
disseisin (action to recover possession of land) under Henry II in the 12th
century, although its history remains obscure.2 Its early use revolved around
interference with servitudes and rights in respect of land. Its association with
protection of land rights explains its early limited development compared
with the wide range of other actions which were classified eventually as
actions on the case. In the 15th century, the assize of nuisance was drawn into
the web of actions on the case and the procedures and process were simplified
and aligned with those in other actions on the case, although the common law
courts could still only award damages.
A quite unrelated development occurred when the term ‘public nuisance’
was applied to a range of petty crimes involving a nocumentum (nuisance) to
the public through inconvenience or damage in the exercise of rights enjoyed
by all members of the public. This was purely criminal until the 16th century
when the first private actions for damages were recognised, provided there
was some ‘greater hurt or inconvenience than everyman had’: Anonymous
(1535) YB 27 H VIII f 27 per Fitzherbert J. Public nuisances did not require
an association with land. Thus, from an historical perspective, although the
two torts came to be known as nuisance, they were and are quite distinct.
Coke CJ in Earl Shrewsbury’s case (1610) Co Rep 466; 77 ER 798 referred to
‘non feasance or negligence’ and it is likely that the word ‘negligence’ was
probably first used in the sense of some negligent omission within the various
actions on the case. In the first quarter of the 19th century, negligence became
recognised as a basis of liability in its own right and, by the middle of the 20th
century, the modern tort of negligence had developed. Since then, what has
often been described as the imperial expansion of the tort of negligence has
resulted in its present status as the dominant tort in the first decade of the
21st century.

The Interests Protected and the Right to Sue

25.95 Private nuisance protects interests in land, although it extends
comprehensively to use and enjoyment as well as physical damage to land and
chattels. Accordingly, only a

[page 673]
person with a legally recognised interest in land may sue: Malone v Laskey
[1907] 2 KB 141. Public nuisance protects the safety and comfort of the public
at large and is not tied to interests in land. However, an individual may sue
only if special damage is shown. The special damage includes physical
damage, discomfort and pecuniary loss: Walsh v Ervin [1952] VLR 361.
Negligence requires neither an interest in land nor special damage, but
merely damage resulting from breach of the duty of care owed by the
defendant to the plaintiff.

The Class of Wrongdoers

25.96 In negligence, the person who has breached their duty of care and
caused damage is the appropriate defendant. In private and public nuisance,
an occupier is responsible for the nuisance which he or she creates and those
which they continue or adopt in circumstances in which the occupier has
knowledge or means of knowledge of its presence but fails to take reasonable
steps to end it: Kraemers v Attorney-General (Tas) [1966] Tas SR 113. A non-
occupier creator of a nuisance may also be liable: Clearlite Holdings Ltd v
Auckland City Corporation [1976] 2 NZLR 729; Khorasandjian v Bush [1993]
QB 727.

Basis of Liability
25.97 The focus of liability in a negligence action is upon the defendant’s
conduct and foreseeable loss resulting from that conduct, whereas in nuisance
the ‘give and take’ rule necessitates a focus upon a balancing of interests
between the plaintiff and defendant in light of the harm caused. Accordingly,
there is a different emphasis in each tort. Nuisance does not centre on
particular conduct but on the harm which results, while negligence centres on
the individual conduct measured against the objective standard of a
reasonable person.
Measuring ‘reasonableness’
25.98 In both private and public nuisance, the ‘give and take, live and let
live’ rule applies: Bamford v Turnley (1862) 3 B & S 62 at 84; 122 ER 27 at 32–
3 per Bramwell B. Not all conduct which is detrimental will attract liability,
but only where the detriment is greater than the plaintiff ought reasonably to
tolerate relative to the defendant’s right to pursue the conduct which results
in the detriment: Corbett v Pallas (1995) Aust Torts Reports ¶81-239. If
required to assess whether the defendant’s conduct is reasonable, the court
adopts an objective test and this is similar to the process engaged in when
measuring the standard of care in negligence against the ‘reasonable person’.
It is sometimes said that the measure in nuisance is subjective because
motive is taken into account: Hollywood Silver Fox Farm Ltd v Emmett [1936]
2 KB 468; Stoakes v Brydges [1958] QWN 5. However, much of what is
described as motive is no more than purpose, and a consideration of the
object to be attained and its utility is, of course, relevant in the negligence
calculus as well. The standard in nuisance is also objective in the sense of
ignoring the overly susceptible plaintiff: Robinson v Kilvert (1889) 41 Ch D
88; Bloodworth v Cormack [1949] NZLR 1058.

[page 674]

Onus of Proof
25.99 There is a clear difference in onus which provides an apparent
advantage in taking an action in nuisance. In negligence, the onus remains
upon the plaintiff throughout for the elements of the cause and it is then for
the defendant to raise any relevant defences. In nuisance, it is for the
defendant to demonstrate reasonableness once the plaintiff proves a prima
facie interference: Kraemers v Attorney-General (Tas) [1966] Tas SR 113;
Radstock Co-operative and Industrial Society Ltd v Norton-Radstock Urban
District Council [1968] Ch 605 (private nuisance); Southport Corporation v
Esso Petroleum Co Ltd [1956] AC 218 (public nuisance). Therefore, there may
be advantages in bringing an action in nuisance rather than negligence in
some cases; see comments by Gaudron, McHugh and Gummow JJ in Brodie v
Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) 206
CLR 512; 180 ALR 145 at [122].

Damage
25.100 For negligence, the damage may result from either an indirect and
unintentional interference or from direct but unintended interference (in
each case, the lack of intention being the relevant factor), whereas, in
nuisance, the interference must be indirect.
Moreover, the damage recognised for negligence covers both physical and
financial loss, not tied to land, whereas for private nuisance the damage must
be associated with the use of land, even if it is physical damage to persons or
property or resultant financial loss.
The association with land is a limit upon the damage recognised for
actionable nuisance, but is balanced by recognition of two positive aspects
which are not known in negligence:
1. Nuisance recognises the more subtle aspects of loss of enjoyment,
whereas negligence requires substantive damage.
2. Nuisance protects against threatened or future interference,
whereas negligence merely compensates for the effects of past
wrongs.

Defences
25.101 A comparison of four of the defences available in negligence with
those available in a nuisance action is also indicative of both the differences
and overlaps between the two:
1. Volenti non fit injuria If a plaintiff actually consents to a nuisance
(Kiddle v City Business Properties Ltd [1942] 1 KB 269), then a
defence similar to volenti is recognised, as in the case of an overly
sensitive plaintiff. However, there is no volens arising merely from a
plaintiff coming to a pre-existing nuisance: Sturges v Bridgman
(1879) 11 Ch D 852; Miller v Jackson [1977] QB 966.
2. Joint illegal activity Participation in a joint illegal activity or
enterprise is a defence in a negligence action in Australia only if the
standard of care cannot be determined except by reference to the
nature of the illegal enterprise: Jackson v Harrison (1978) 138 CLR
438; 19 ALR 129; Gala v Preston (1991) 172 CLR 243; 100 ALR 29.
The policy considerations underlying the defence in negligence may
well permit its application to nuisance, although there appear to be
no reported cases to date.

[page 675]

3. Contributory negligence This defence provides by far the most

controversial issue in its alleged application to nuisance: McMeekin
v Council of the City of Maryborough [1947] St R Qd 192. The
defence has certainly applied to personal injury cases involving
public nuisance (Butterfield v Forrester (1809) 11 East 60; 103 ER
926), but its application to private nuisance remains doubtful. The
apportionment legislation, which reduced the common law
contributory negligence to a partial defence, could arguably extend
to private nuisance.
4. Statutory authority When used as a defence, it applies to both
negligence and nuisance actions: Allen v Gulf Oil Refining Ltd
[1981] AC 1001.
Remedies
25.102 For negligence, compensatory damages is the remedy, whereas for
nuisance, in addition to compensatory damages for past losses, aggravated or
exemplary damages may be available, as well as injunctive relief for future or
threatened interferences, particularly if repetition is threatened. Damages in
lieu of an injunction may be available pursuant to legislation such as Civil
Proceedings Act 2011 (Qld) s 8; and see Barbagallo v J & F Catelan Pty Ltd
[1986] 1 Qd R 245. Finally, a plaintiff is entitled to resort to self-help to abate
a nuisance provided the steps taken are reasonable and within the limits
imposed by the courts.
See also Chapter 21 for a discussion of proportionate, rather than solidary,
liability for property damage and pure economic loss, but not for personal
injury.

Further Reading
R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis
Butterworths, Sydney, 2013, Ch 14.
P Cane, ‘What a Nuisance!’ (1997) 113 LQR 515.
M Fordham, ‘The Roll of the Negligence Bandwagon: What Role for
Public Nuisance?’ (2003) 11 Tort L Rev 26.
H Luntz, D Hambly, K Burns, J Dietrich and N Foster, Torts: Cases and
Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2012, Chs 14
and 15.

1. See J Bell, Climate Change and Coastal Development Law in Australia, The Federation Press,
Sydney, 2014.
2. T F T Plucknett, A Concise History of the Common Law, 5th ed, Butterworth and Co, London,
1956, p 469.
[page 677]
 Chapter 26

Liability for Animals

1 Introduction
26.1 The common law rules in respect of liability for animals developed in
England at a time when agricultural interests were favoured over the general
public and arable agriculturalists favoured over graziers. Accordingly, the
rules denied liability for stock wandering onto highways or for stock on
highways wandering onto adjacent property, but imposed liability for stock
wandering from one property to another.
The law relating to the liability of owners or controllers of animals for
damage done by their animals involves several aspects of the law of torts, as
modified by statute. The specific actions of scienter and cattle trespass are
torts of strict liability. However, liability for animals may arise through the
action of trespass, negligence and private and public nuisance.

2 Strict Liability
Scienter
26.2 The word ‘scienter’ refers to the knowledge of an animal’s dangerous
disposition. Under the common law, strict liability is imposed for damage
caused by dangerous animals. A person who knowingly keeps a dangerous
animal is bound to prevent it doing harm to the person or property of
another and is liable without proof of negligence.
 The scienter action has been abolished in the Australian Capital Territory,
New South Wales and South Australia: Civil Law (Wrongs) Act 2002 (ACT) s
214; Animals Act 1977 (NSW) s 7(2)(a); Civil Liability Act 1936 (SA) s 18. In
Western Australia, the action is abolished only in respect of animals straying
onto a highway: Highways (Liability for Straying Animals) Act 1983 (WA) s
3(3). The principle of scienter in respect of dogs has been modified by statute
in all Australian jurisdictions, except in Queensland: see 26.16.

Classification of animals
26.3 For the purpose of the scienter action, animals are classified as either
ferae nature (wild disposition) or mansuetae naturae (naturally tame or of a
domesticated disposition). The classification of the animal is a question of
law, the test being whether the species is

[page 678]

likely to be dangerous to persons: McQuaker v Goddard [1940] 1 KB 687 at

700–1; [1940] 1 All ER 471 at 478–9; Behrens v Bertram Mills Circus Ltd
[1957] 2 QB 1; [1957] 1 All ER 583.

26.4 Mansuetae naturae (naturally tame) The characteristics of domestic

animals were identified by Lord Esher MR in Filburn v People’s Palace &
Aquarium Co Ltd (1890) 25 QBD 258 at 260 as either being harmless by their
very nature or those species that had been tamed and domesticated so as to be
harmless. His Lordship gave the examples of pigeons, rabbits, dogs, horses
and cattle as domestic animals. Other examples include kangaroos (Lake v
Taggart (1978) 1 SR (WA) 89), bees (Stormer v Ingram (1978) 21 SASR 93)
and bulls: Smith v Capella State High School Parents and Citizens Association
[2004] QSC 34.

26.5 The keeper of a domestic animal will only be strictly liable if the
animal has a propensity to be dangerous and the keeper has knowledge of
that propensity: Eather v Jones [1974] 2 NSWLR 19; (1975) 6 ALR 220; Jones v
Linnett [1984] 1 Qd R 570.
In Draper v Hodder [1972] 2 QB 556 at 569, Edmund Davies LJ stated:
A person keeping an animal “mansuetae naturae”, which he knows has a propensity to do a
particular kind of mischief, is under an absolute duty to prevent it from doing that kind of
mischief, and is, therefore, liable without proof of negligence for any damage caused by the
animal’s acting in accordance with that known propensity. But to render the defendant liable,
proof must be directed to his knowledge regarding the propensity of the individual animal
whose activities have given rise to the institution of legal proceedings.

Therefore, to be strictly liable for damage caused by a domestic animal, the

plaintiff must establish that the animal had done, or had attempted to do; the
kind of harm alleged on a previous occasion (Worth v Gilling (1866) LR 2 CP
1) and that the defendant knew of this act or attempt.

26.6 The knowledge must be of the particular propensity. Knowledge of a

propensity to bite humans is not necessarily knowledge of a propensity to
attack other animals and vice versa: Glanville v Sutton [1928] 1 KB 571. It is
only the propensity which must be shown to have been known and not
knowledge of past injury of that very kind: Cruttendon v Brenock [1949] VLR
366. In Romano v Spagnol (NSWCA, Kirby P, Meagher and Cole JJA, 17
October 1994, unreported), it was held that only slight evidence is sufficient
to sustain knowledge as it would, generally, be only the owner who would
know the actual propensity of the animal: at 3. In that case, evidence was
given of the type of dogs involved and the fact that the dogs in question were
chained with a heavy thick chain to a spike. However, in Collins v Carey
[2002] QSC 398, at first instance, Philippides J held in relation to the claim in
scienter, that a warning given to the plaintiff by the defendant not to go near
the place where the dog was chained and the fact that there had been 25
articles in five years in the main Queensland newspaper about dog bites of the
particular breed of dog, did not reflect any knowledge of the defendant of the
dog’s propensity to bite: at [26]–[31].
26.7 The action of scienter arises from the damage caused by lack of
control, even if there is no escape from confinement: Higgins v William Inglis
& Son Pty Ltd [1978] 1 NSWLR 649. Escape from control need not result in
escape from the land: Mansfield v Baddeley (1876) 34 LT 696. However, the
damage must have been caused while the animal was not being controlled:
Rands v McNeil [1955] 1 QB 253.

[page 679]

26.8 As to whether there must be a link between the dangerous attribute of

the animal and the harm suffered, there are conflicting views. For domestic
animals (mansuetae naturae), the harm suffered by the plaintiff must relate to
the animal’s dangerous propensity. In Glanville v Sutton [1928] 1 KB 571, the
action in scienter, based upon a horse biting the plaintiff, failed as the known
propensity of the horse was for biting other horses. As for wild animals (ferae
naturae), there are differing approaches and no clear Australian authority.
However, in England, the approach is that it would be ‘unreasonable to limit
the liability’ for a wild animal: Behrens v Bertram Mills Circus Ltd [1957] 2 QB
1 at 17; [1957] 1 All ER 583 at 590 (analogy of waking to find a tiger on the
bed, causing a heart attack). See also Brook v Cook (1961) Sol Jo 684
(plaintiff’s fall upon seeing a monkey in her garden was not a foreseeable
result of her shock).

26.9 The owner and the keeper of the animal may be sued, but liability will
usually rest upon the keeper: North v Wood [1914] 1 KB 629. It is possible
that the relationship between the keeper of the animal and the owner imputes
knowledge of the animal’s dangerous propensity, for example in an
employment or agency relationship where the doctrine of vicarious liability
would apply.

26.10 Ferae naturae (wild by nature) If a species is not harmless by

nature or domesticated so as to be harmless, then it will be classified as wild.
The law has identified many species as wild, for example elephants (Filburn v
People’s Palace & Aquarium Co Ltd (1890) 25 QBD 258; Behrens v Bertram
Mills Circus Ltd), bears (Besozzi v Harris (1858) 175 ER 650), zebras (Malor v
Ball (1900) 16 TLR 239), monkeys and chimpanzees (May v Burdett (1846) 9
QB 101; James v Wellington City [1972] NZLR 978) and the dingo: Fischer v
Stuart (1979) 25 ALR 336. It has been assumed by the courts that lions and
tigers are classified as dangerous: Behrens v Bertram Mills Circus Ltd.
Animals classified as wild are done so by species, not by the particular
member of the species. In Behrens v Bertram Mills Circus Ltd, the plaintiffs
suffered injury when a trained circus elephant reacted in fright to a dog. Lord
Devlin stated (at QB 14; All ER 588):
The law ignores the world of difference between the wild elephant in the jungle and the trained
elephant in the circus. … I am, however, compelled to assess the defendant’s liability in this case
in just the same way as I would assess it as if they had loosed a wild elephant into the fun fair.

Similarly, in Smith v Capella State High School Parents and Citizens

Association [2004] QSC 34 at [28], it was held that there was ‘nothing
distinctive about bucking bulls that would justify classifying them as a class
separate from other domestic cattle’.

26.11 In the case of animals ferae naturae, the person in control of the
animal is deemed to have knowledge (scienter) of its dangerous propensities.
The controller of the dangerous animal may be held liable for all of the
damage that is the natural and probable consequence of the failure to control
the animal: Behrens v Bertram Mills Circus Ltd [1957] 2 QB 1; [1957] 1 All ER
583. If the controller of the wild animal has control due to employment or
agency, the owner will be vicariously liable.

Defences to a scienter action

26.12 Volenti non fit injuria Voluntary assumption of risk (volenti non fit
injuria) is a complete defence to a scienter action: Dorman v Horscroft (1980)
24 SASR 154. If the

[page 680]

plaintiff voluntarily takes the risk of injury with full knowledge of the
dangerous nature of the animal, the defence will succeed. For example, a
person who trespasses on land knowing of the existence of the dangerous
animal on that land and is injured by the animal, the defence of volenti may
be raised: Cummings v Granger [1976] 3 WLR 842; [1977] 1 All ER 104.
However, more than a ‘Beware of the Dog’ sign is required to satisfy that the
plaintiff had knowledge.

26.13 The duty of a keeper to a licensee (a person entering property with

permission or under a licence) is to warn of danger, and if the licensee
chooses to accept the risk, the keeper will not be liable: Cummings v Granger;
Brock v Copeland (1794) 1 Esp 203; 170 ER 328.

26.14 Default of plaintiff It is a good defence that the plaintiff brought

the damage upon himself or herself. The defendant must prove that the
plaintiff’s own actions led to the injury. The plaintiff’s default destroys the
causal link between the injury and the keeping of the animal. A plaintiff will
be at fault, for example by irritating or provoking the animal: May v Burdett
(1846) 9 QB 101 at 113; 115 ER 1213 at 1218; Simpson v Bannerman (1932) 47
CLR 378 at 384. However, contributory negligence is not a defence to a
scienter action: Higgins v William Inglis & Son Pty Ltd [1978] 1 NSWLR 649
at 654–5.
If the plaintiff is a trespasser, it may be argued that the plaintiff’s own
default led to their injuries. The High Court in Simpson v Bannerman
observed (at 384):
But if a person goes on premises for no lawful purpose and is bitten he cannot complain of that
 which was brought upon him by his own act (Sarch v Blackburn (1930) 47 TLR 25).

26.15 Act of a third party If the escape from control results from an act of
God (for example, an earthquake), there may be no liability: Nichols v
Marsland (1875) LR 10 Ex 255 at 260. However, the act of a stranger is not a
defence: Behrens v Bertram Mills Circus Ltd [1957] 2 QB 1; [1957] 1 All ER
583; Jones v Linnett [1984] 1 Qd R 570 at 575.

Strict Liability for Dogs

26.16 The legislation in respect of dogs in Australia can be traced back to
the Dog Nuisance Act 1830; 11 Geo IV No 8, and is seen as necessary as they
are animals commonly allowed to roam which have the ability to inflict
serious injury on other animals and humans.1

26.17 In every Australian jurisdiction, except Queensland, legislation

provides for the recovery of damages for injuries inflicted by dogs irrespective
of negligence: Domestic Animals Act 2000 (ACT) s 50; 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 19; Domestic Animals Act 1994 (Vic) s 29(3); Dog Act 1976
(WA) s 46. The action provided by the legislation is in addition to any
common law rights. In Queensland, the common law only applies and a
plaintiff would need to take an action in scienter, negligence or nuisance.

[page 681]

Generally the legislation imposes strict liability and a plaintiff does not
have to prove any dangerous propensity of the dog, or knowledge of the
owner of any dangerous propensity; see, for example, Dog Act 1976 (WA) s
46(3). Also, a defendant cannot escape liability by proving a lack of negligence
on their part. In Rokich v Gianoli (WASC, Pidgeon, Murray and Parker JJ, 4
March 1997, unreported), the Full Court of Western Australia rejected the
defendant’s submission that the legislation created a rebuttable presumption.

26.18 Liability is placed on the owner or keeper of the dog. Most of the
statutory definitions of ‘owner’ include the person in control of the dog and
the occupier of the premises where the dog resides.

Defences
26.19 The legislation of the various jurisdictions provides limitations in
respect of liability. In addition, the defences available to an action in scienter
may be raised: Simpson v Bannerman (1932) 47 CLR 378 at 383; Rigg v Alietti
[1982] WAR 203 at 207.

26.20 Provocation by plaintiff A common defence is that the plaintiff

suffered their injuries due to them provoking, teasing or mistreating the dog:
Domestic Animals Act 2000 (ACT) ss 50(3)(a), 55(4)(c); Companion Animals
Act 1998 (NSW) s 16(2); Dog and Cat Management Act 1995 (SA) s 66(3)(a);
Dog Control Act 2000 (Tas) s 19(5)(b); Domestic Animals Act 1994 (Vic) s
29(2). See also Dog Act 1976 (WA) ss 3(1) definition of ‘provocation’ and
33D.There is no such defence under the Northern Territory legislation.

26.21 Contributory negligence In some jurisdictions the legislation

expressly provides for the defence of contributory negligence: see Domestic
Animals Act 2000 (ACT) ss 50(3)(c) and 55(4)(b); Companion Animals Act
1998 (NSW) s 28; Dog and Cat Management Act 1995 (SA) s 66(4); Dog Act
1976 (WA) s 46(2).

26.22 Volenti non fit injuria Although there is no provision in the

legislation, the defence of volenti is allowed.

26.23 Plaintiff a trespasser In most jurisdictions, the legislation expressly

provides a defence if the plaintiff was trespassing: Domestic Animals Act 2000
(ACT) ss 50(3)(c)(i), 55(4)(a); Companion Animals Act 1998 (NSW) s 25(2);
Dog and Cat Management Act 1995 (SA) s 66(3)(c); Dog Control Act 2000
(Tas) s 19(5)(a); Domestic Animals Act 1994 (Vic) s 29(2). See also Dog Act
1976 (WA) ss 3(1) definition of ‘provocation’ and 33D.The defence is not
provided by the Northern Territory legislation.
See Johnson v Buchanan [2012] VSC 195 (no liability as plaintiff was bitten
when he placed his arm over the boundary fence of the property); Penford v
Betteridge (2011) 13 DCLR (NSW) 168; [2011] NSWDC 146; Simon v
Condran [2013] NSWDC 32.

Cattle Trespass
26.24 The tort of cattle trespass is one of strict liability; the person in
control of the cattle will be liable for any trespass by the cattle onto another’s
land: Cox v Burbridge (1863) 143 ER 171; Wormald v Cole [1954] 1 QB 614.
An exception to this is if the cattle are lawfully on

[page 682]

the highway and escape onto adjoining land. In such circumstances, the
defendant will only be liable if they were negligent in allowing the cattle to
escape: Davis v Cole [1939] VLR 320.
The cause of action applies not only to cattle, but extends to various
domesticated animals, for example oxen, goats, swine, sheep, domestic birds,
horses and donkeys, but not to cats or dogs: Buckle v Holmes [1926] 2 KB 125;
Jones v Linnett [1984] 1 Qd R 570 at 574.
The tort has been abolished in the Australian Capital Territory, New South
Wales, South Australia and partially in Western Australia: Civil Law
(Wrongs) Act 2002 (ACT) s 212; Animals Act 1977 (NSW) s 4(1); Civil
Liability Act 1936 (SA) s 18; Highways (Liability for Straying Animals) Act
1983 (WA) s 3(3). In Queensland, there has been comment that the tort may
not survive further consideration by an appellate court: Lade & Co Pty Ltd v
Black [2007] QSC 385 at [46].

26.25 The action of cattle trespass is closely linked to trespass to land. If a

person deliberately drives an animal onto the land of another, then an action
in trespass to land arises from such a direct interference: see 26.28. In
comparison, the tort of cattle trespass will include situations where the animal
acts independently, that is, the animals simply wander onto the plaintiff’s
land themselves. Even partial entry, for example by one animal placing its
head through a fence to harm another, is sufficient to impose liability: Ellis v
Loftus Iron Co (1874) LR 10 CP 10.
In an action of cattle trespass, the plaintiff must have an interest in the land
trespassed upon: Edwards v Rawlins [1924] NZLR 333. The proper defendant
to an action in cattle trespass is the person in control of the animal, which
may not necessarily be the owner.

26.26 Scienter need not be shown and, as it is a trespass action, it is

actionable without proof of any damage: see Chapter 2. If damage is suffered,
a plaintiff is entitled to compensation. This may include compensation for
any damage to the land or crops or damage to animals on the plaintiff’s land,
for example through infection, insemination or physical attack. Personal
injury may be compensated, but the damage must arise from the normal
behaviour of the animal’s species. For example, in Mark v Barkla [1935]
NZLR 347, it was held that it was not the ordinary nature of a boar to attack a
person, and in Cox v Burbridge (1863) CB (NS) 430; 143 ER 171, it was held
that it is unlikely that a horse will kick a human. However, injury from being
trampled upon by a cow, not attacked, may be compensated: see Wormald v
Cole [1954] 1 QB 614.

Defences
26.27 The defences available to an action in cattle trespass include:
 volenti non fit injuria;
an act of God;
an act of a third party for whom the defendant was not responsible;
and
he plaintiff’s own default, for example a failure to fence when under an
obligation to do so: Rooth v Wilson (1817) 1 B & Ald 59; 106 ER 22.

[page 683]

3 Fault
Trespass
26.28 If animals are intentionally driven onto the land of another or
intentionally directed to attack, actions for trespass to land and person may
arise: Beckwith v Shordike (1767) 4 Burr 2093; 98 ER 91; League Against Cruel
Sports Ltd v Scott [1986] QB 240. See also Chapters 3 and 4.43.

Negligence
26.29 A person with the care and control of an animal may be liable in
negligence. The defendant must owe a duty of care to the plaintiff and there
must have been a failure to exercise reasonable care resulting in damage that
is not too remote: Draper v Hodder [1972] 2 QB 556; Carrera v Honeychurch
(1983) 32 SASR 511. See Chapter 8.

26.30 An action in negligence may be available even if there is a lack of

actual knowledge of the animal’s dangerous propensity. In Galea v
Gillingham [1987] 2 Qd R 365 at 375, it was held, in claiming negligence in
relation to injuries suffered due to a domestic animal, a plaintiff had to
establish, first, that there was a foreseeable risk that the injuries suffered could
be inflicted by the animal if the defendant did not take reasonable care and,
second, there was a propensity on the part of the animal that the defendant
knew, or ought to have known, and, therefore, ought to have foreseen the real
risk of injury.
In Collins v Carey (2003) Aust Torts Reports ¶81-709, the plaintiff was on
the defendant’s premises carrying out a job as a furniture removalist when he
was bitten by the defendant’s dog (a cattle dog/Staffordshire bull-terrier
cross). The claim in scienter was rejected by the trial judge (see 26.6), but the
plaintiff was successful in proving negligence. The Court of Appeal held that
the trial judge was correct in finding that the evidence that the owner had tied
the dog up and warned the plaintiff not to go near the area where the dog was,
did not indicate actual knowledge of its dangerous propensity. However, it
was recognition by the defendant of the risk that the dog might bite, contrary
to its past conduct. It was held that the defendant ought to have appreciated
that the dog was of a dangerous breed and was territorial in nature. By failing
to properly restrain the dog, the defendant had been negligent.

26.31 A defendant will not owe a duty to warn a plaintiff of an animal’s

propensity if it is an obvious risk. An ‘obvious risk’ is a risk that would be
obvious to a reasonable person in the position of the plaintiff: Civil Liability
Act 2002 (NSW) s 5H; Civil Liability Act 2003 (Qld) s 15; Civil Liability Act
1936 (SA) s 36; Civil Liability Act 2002 (Tas) s 17; Civil Liability Act 2002
(WA) s 5O.

26.32 In New South Wales, South Australia and Western Australia,

legislation specifies what a court is to take into account when determining
whether the duty of care has been breached: Animals Act 1977 (NSW) s 10;
Civil Liability Act 1936 (SA) s 18(2), (6); Highways (Liability for Straying
Animals) Act 1983 (WA) s 3(4). See also Civil Law (Wrongs) Act 2002 (ACT)
s 169.
 [page 684]

Defences
26.33 The usual defences to a negligence action may be raised by a
defendant, for example contributory negligence (Dorman v Horscroft (1980)
24 SASR 154; Smith v Capella State High School Parents and Citizens
Association [2004] QSC 34 at [24]–[25]) and volenti non fit injuria: see
Chapter 13. Under most of the civil liability legislation, if the defence of
volenti is raised and the risk of being injured by the animal was an obvious
risk, it will be assumed that the plaintiff was aware of the risk unless they can
prove, on the balance of probabilities, that they were not aware of the risk:
Civil Liability Act 2002 (NSW) ss 5F, 5G; Civil Liability Act 2003 (Qld) ss 13,
14; Civil Liability Act 1936 (SA) ss 37, 38; Civil Liability Act 2002 (Tas) ss 15,
16; Wrongs Act 1958 (Vic) ss 53, 54; Civil Liability Act 2002 (WA) ss 5F, 5N.
There is no equivalent in the Australian Capital Territory or the Northern
Territory. See 3.53.

Rule in Searle v Wallbank

26.34 In Searle v Wallbank [1947] AC 341, it was held that there was no
duty to take care to prevent tame animals from straying on to the highway
even if there was a likelihood that they may cause harm. This immunity was
confirmed by the High Court in State Government Insurance Commission
(SA) v Trigwell (1979) 142 CLR 617 at 631; 26 ALR 67 at 76, where the effect
of the rule was explained as:
[The owner of land adjacent to a highway is] under no legal obligation to users of [the highway]
so to keep and maintain his hedges, fences and gates as to prevent animals from straying on to it,
and … he is not under any duty as between himself and users of it to take reasonable care to
prevent any of his animals, not known to be dangerous, from straying on to it.

26.35 The rule in Searle v Wallbank [1947] AC 341 has been removed by
statute in England (Animals Act 1971 s 8) and in all Australian jurisdictions
except Queensland and the Northern Territory: Civil Law (Wrongs) Act 2002
(ACT) s 214; Animals Act 1977 (NSW) s 7(2)(b); Civil Liability Act 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(1). A plaintiff
suffering damage due to straying animals would have an action in negligence:
see, for example, Motor Accidents Insurance Board v Lester [2016] TASSC 2.
In 1977, the Queensland Law Reform Commission released a working
paper that recommended the abolition of the rule in Searle v Wallbank but no
change in government policy ever eventuated.2 In Fabian v Welsh [1999]
QCA 365, the appellant argued that Searle v Wallbank had been overtaken by
the general approach to negligence. However, the Queensland Court of
Appeal noted (at [9]):
Until the High Court reverses or modifies it more clearly, it might be difficult to disregard the
explicit authority of Trigwell upon the basis of some perceived tendency of the court …

[page 685]

26.36 It is likely the Australian High Court would today modify or

abandon this relic of the past and allow the ordinary principles of negligence
to apply. Murphy J, giving a dissenting judgment in State Government
Insurance Commission (SA) v Trigwell (1979) 142 CLR 617; 26 ALR 67, was
highly critical of the acceptance of the rule as part of Australian law at
settlement. His Honour stated (at CLR 644; ALR 87):
The judgments in Searle v Wallbank and the English cases before and after it, contain a number
of statements of social policy, and consciously balance the interests of landowners and users of
highways as they were visualised in the conditions in England at that time. The common law is
studded with similar decisions expressing the social values of judges. Searle v Wallbank should
not be criticised because of this; criticism should be directed towards the resulting exception
from the general law of negligence which departed so far from the social values prevailing in the
United Kingdom that it was superseded by parliament (see Animals Act 1971). The decision of
the judges in Searle v Wallbank has been subjected to much criticism …

His Honour was of the opinion that ‘Searle v Wallbank should not be part
of the law’: at CLR 652; ALR 93. However, the decision remains as authority
that the rule continues to exist in those jurisdictions that have not legislated
its abolition.

26.37 In Searle v Wallbank [1947] AC 341, the plaintiff was riding his
pushbike down a lane at 1.30 am during wartime and his front light was
masked because of blackout regulations. He collided with a horse, belonging
to the defendant, which had escaped through a hedge onto the roadway. The
House of Lords held there was no duty to fence or to prevent animals not
known to be dangerous from straying. In the words of Viscount Maugham (at
352–3):
The fact is, as the desuetude of the village pound shows that “estrays” or “strays” were far
commoner a hundred years ago. The above considerations seem to me to be conclusive to show
that no such duty to road users as the appellant relies on could possibly have existed before the
advent of fast traffic on madeup roads. Hedges and fences were generally constructed and
maintained in the interests of the owners of adjacent lands, and accidents to road users arising
from the animals straying on the roads were so far as one can judge practically nonexistent.
Since fast traffic on such roads became usual, accidents due to straying animals no doubt
sometimes occur; but so far as we know they are exceedingly rare. Moreover, they also arise
when animals are being led or driven along highways in the usual course of husbandry, and no
one suggests that motorists and cyclists have a prima facie right of action against the person in
charge of them. More frequently such accidents are caused by dogs or fowls which can get
through or over any ordinary hedge, and counsel for the appellant admitted, and I think rightly,
that no action would lie in such cases against the owners. No facts in my opinion have been
established which would tend to show that farmers and others at some uncertain date in our
lifetime became subject for the first time to an onerous and undefined duty to cyclists and
motorists and others which never previously existed. The fact that the duty does not exist if the
road is unenclosed by fences and yet that accidents are rare is, I think, strong to show that the
respondent was not bound as a reasonable man to think that his failure to fill up a gap in his
fence was likely to cause such an accident as the one which took place.

26.38 Immunity does not arise under the rule if there is knowledge of a
mischievous propensity, that is, something more than a mere proclivity to
straying: State Government Insurance Commission (SA) v Trigwell (1979) 142
CLR 617; 26 ALR 67; Graham v Royal
 [page 686]

National Agricultural and Industrial Association of Queensland [1989] 1 Qd R

624. In State Government Insurance Commission (SA) v Trigwell, it was held
that the immunity applied to deny liability in nuisance, as otherwise it would
‘subvert the operation of the rule itself’ (CLR at 637; ALR at 81). However, the
court noted that an action in public nuisance was possible if the common
right of passage over the highway was obstructed and therefore the rule in
Searle v Wallbank would not afford immunity if a number of animals escape
onto a highway and interfere with the public’s right (CLR at 637–8; ALR at
81, citing Searle v Wallbank at 361). On the facts before the court, it was not
thought that a few straying sheep caused an interference with the public’s
rights.
The rule will not apply if the animals did not stray onto the highway but
were brought onto the highway by the owner, and the owner will owe a duty
of care to the users of the highway: Deen v Davies [1935] 2 KB 282 at 295. In
Smith v Williams (2006) 47 MVR 169 at [19], the Queensland Court of
Appeal held that it must be proven that the owners exercised active control
over the animals to direct them onto the highway for the immunity not to
apply.

Nuisance
26.39 It may be a private nuisance to keep certain animals if they interfere
with the enjoyment of another’s land, for example the keeping of noisy birds
(Ruthning v Ferguson [1930] St R Qd 325) or horses: Munro v Southern
Dairies Ltd [1955] VLR 332. An actionable nuisance may also arise if animals
stray onto land in the possession of the plaintiff.
In Stockwell v Victoria [2001] VSC 497, the plaintiff sued in nuisance for
the straying of wild dogs from the adjoining Crown land designated as a
reference area by the government, prohibiting entry by any person except
those authorised by the Minister. The evidence was that wild dogs regularly
went onto the plaintiff’s land from the Crown land and attacked his sheep.
Gillard J stated (at [306]):
… the wild dogs coming onto the plaintiff’s property and killing and injuring his stock
constituted an interference with the plaintiff’s enjoyment of the rights in his land. I am also
satisfied that the interference to his rights was substantial. These attacks constituted a nuisance.

26.40 There may be a public nuisance if the owner of animals permits

them to interfere with public rights. An individual member of the public may
sue in public nuisance if they suffer particular damage, for example if the
animal strays onto the footpath and trips a pedestrian: Pitcher v Martin
[1937] 3 All ER 918 (also held to be negligence). See also Chapter 25.

Further Reading
R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis
Butterworths, Sydney, 2013, Ch 15.
H Luntz, D Hambly, K Burns, J Dietrich, and N Foster, Torts: Cases
and Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2012, Ch
15.

1. See New South Wales Law Reform Commission, Civil Liability for Animals, Report No 8, 1970, p
35.
2. Queensland Law Reform Commission, Working Paper on a Bill to Remove the Anomalies Presently
Existing with Respect to Civil Liability for Animals and to Rationalise the Existing Rules of Common
Law for Damage Done by Animals, Working Paper No. 18 (1977).
 Index
References are to paragraph numbers

A
Aboriginals
false imprisonment …. 3.51
personal injury damages …. 15.125
Absolute privilege see also Qualified privilege
judicial proceedings …. 23.24, 23.27
Australian court, definition …. 23.30
common law …. 23.25–23.28
defamation legislation …. 23.29, 23.30
other legislation …. 23.31
professional disciplinary bodies …. 23.28
Royal Commissions …. 23.31
solicitor client communications …. 23.26
officers of state …. 23.32
overview …. 23.16, 23.17
parliamentary proceedings …. 23.16, 23.18
common law …. 23.19, 23.20
defamation legislation …. 23.19, 23.21, 23.22
other legislation …. 23.23
 parliamentary body, definition …. 23.22
Abuse of process
damage requirement …. 18.44, 18.49
defences …. 18.50
defendant as party to proceedings …. 18.48
elements …. 18.44
improper purpose …. 18.44, 18.45
mixed purposes …. 18.46
malicious prosecution, distinction …. 18.47
overview …. 18.1, 18.41, 18.42
recognition in Australia …. 18.43
Accessorial liability
misleading or deceptive conduct …. 19.97, 19.98
Account of profits
overview …. 15.6
passing off …. 15.6, 24.31
Act of God defence
cattle trespass …. 26.27
scienter action …. 26.15
Actions on the case see also Malicious prosecution; Misfeasance
in public office; Negligence; Nuisance
characteristics of actions …. 2.21
evolution of actions …. 2.1, 2.5, 2.21
Australian position …. 2.7, 2.8, 2.9, 2.10, 2.22
indirect interference …. 2.2, 2.7
intention …. 2.3, 2.6, 2.10, 2.22
 United Kingdom …. 2.6
indirect interference …. 2.2, 2.7, 2.21
innominate actions …. 2.21, 2.25, 2.28
High Court decisions …. 2.26, 2.27
reversionary owners …. 5.70
intention …. 2.3, 2.6, 2.10, 2.21, 2.22, 2.24, 2.28
limitation of actions …. 14.15
onus of proof …. 2.21
overview …. 2.1, 2.21
trespass, distinction …. 2.1, 2.5, 2.25, 2.28, 14.15
Australian position …. 2.7, 2.8, 2.9, 2.10, 2.11, 2.22–2.24, 2.28, 7.10
causal connection …. 2.2
diagram …. 2.11
direct interference …. 2.2, 2.7, 2.8
fault …. 2.4, 2.6, 2.8
intention …. 2.3, 2.5, 2.6, 2.10, 2.22, 2.28, 7.10
significance of distinction …. 2.22
United Kingdom …. 2.6
Agency
agent, meaning …. 20.51
agent or contractor …. 20.56
deceit …. 19.77
liability of principal …. 20.50, 20.52
misleading or deceptive conduct …. 19.97
motor vehicle owners …. 20.57, 20.58
hire care firms …. 20.59
 legislation …. 20.60
rebuttal of presumption …. 20.59
vicarious liability …. 20.50, 20.51
agent or contractor …. 20.56
express authorisation …. 20.54
holding out …. 20.55
motor vehicle owners …. 20.57–20.60
ostensible authority …. 20.52, 20.55
scope of authority …. 20.52, 20.53
Aggravated damages
assault …. 3.81
conversion …. 5.76
deceit …. 19.89
defamation …. 15.24, 23.120, 23.124
corporations …. 23.125
justification defence …. 23.122–23.123
definition …. 3.80, 15.24
detinue …. 5.76
false imprisonment …. 3.81, 3.82
intimidation …. 24.86
malicious prosecution …. 7.19
personal injuries …. 15.24
trespass to chattels …. 5.76
trespass to land …. 4.61, 4.63–4.64
trespass to person …. 3.79, 3.80–3.82, 3.84
vulnerable personalities …. 3.81
Animals
cattle trespass …. 26.1, 26.24, 26.25
damage …. 26.26
defences …. 26.27
personal injuries …. 26.26
proper defendant …. 26.25
statutory abolition …. 26.24
trespass to land, and …. 26.25
development of law …. 26.1
distress damage feasant …. 6.47
dogs …. 26.16
contributory negligence …. 26.21
dangerous dogs …. 26.6
defences …. 26.19–26.23
historical background …. 26.16
knowledge of propensity …. 26.5, 26.6
legislation …. 26.16, 26.17
owner’s liability …. 26.18
provocation by defendant …. 26.20
trespassers …. 26.23
voluntary assumption of risk …. 26.22
negligence …. 26.1, 26.29
breach of duty …. 26.32
defences …. 26.33
knowledge of dangerous propensity …. 26.30
obvious risk …. 26.31
 straying onto highways …. 26.35, 26.36
voluntary assumption of risk …. 26.33
occupiers of premises …. 20.71
overview …. 26.1
private nuisance …. 26.1, 26.39
public nuisance …. 26.1, 26.40
straying onto highways …. 26.38
scienter …. 26.1, 26.2
act of God defence …. 26.15
classification of animals …. 26.3
contributory negligence …. 26.14
controller’s liability …. 26.11
damage caused by lack of control …. 26.7
default of plaintiff …. 26.14
defences …. 26.12–26.15
domestic animals …. 26.3, 26.4–26.9
escape from control …. 26.7
ferae naturae …. 26.3, 26.8, 26.10, 26.11
harm and dangerous propensity …. 26.8
keeper’s liability …. 26.5, 26.9
knowledge of propensity …. 26.5, 26.6, 26.11
mansuetae naturae …. 26.3, 26.4–26.9
meaning …. 26.2
owner’s liability …. 26.9
statutory abolition …. 26.2
voluntary assumption of risk …. 26.12, 26.13
 wild animals …. 26.3, 26.8, 26.10, 26.11
straying onto highways …. 26.34, 26.37, 26.38
criticisms of rule …. 26.36
knowledge of propensity …. 26.38
public nuisance …. 26.38
Queensland …. 26.35
Searle v Wallbank …. 26.34, 26.35, 26.37
statutory abolition …. 26.35
strict liability …. 26.1
cattle trespass …. 26.24–26.27
dogs …. 26.16–26.23
scienter …. 26.2–26.15
trespass to chattels …. 5.17
trespass to land …. 4.43, 26.1, 26.28
cattle trespass, and …. 26.25
trespass to person …. 26.28
Appeals
contributory negligence …. 13.46
‘rule of restraint’ …. 13.47
defamation …. 22.63
damages awards …. 23.138–23.140
negligence actions …. 11.93, 11.96
additional grounds …. 11.94
High Court …. 11.95
judge alone …. 8.25, 11.96
questions of fact …. 8.24, 8.25
 questions of law …. 8.24
personal injury damages …. 15.151, 15.152
Arrest
arbitrary arrest …. 3.64
civil arrest …. 3.64, 3.69
onus of proof …. 3.70
statutory modification …. 3.70
false imprisonment …. 3.64–3.70
overview …. 3.64
police arrest …. 3.64, 3.65
delay in charging …. 3.65
trespass to land …. 4.28
warrant arrests …. 3.67
warrant without authority …. 3.68
without warrant …. 3.65, 3.66
Assault see also Battery
ability to carry out threat …. 3.25
actual or apparent ability …. 3.25, 3.26
belief in ability …. 3.26
knowledge of threat …. 3.24
apprehension of force …. 3.27
conditional threats …. 3.29
reasonable person …. 3.28
child sexual abuse …. 14.43
conditional threats …. 3.29, 3.30
defence of another …. 6.33
defence of property …. 6.37
definition …. 3.4, 3.19, 3.37, 3.38, 3.39, 3.40, 3.41, 6.32
elements …. 3.19
employer’s duty of care …. 9.44
evolution of law …. 1.39
false imprisonment, and …. 3.57
fault …. 3.31
injunctions …. 3.85
intention …. 3.19, 3.31, 3.32
knowledge of threat …. 3.24
limitation of actions …. 3.88
child sexual abuse …. 14.43
overview …. 3.2, 3.19
provocation …. 3.43, 3.44, 6.35, 6.36
Queensland position …. 3.37, 3.39
assault, definition …. 3.4, 3.19, 3.37, 3.38, 3.39, 3.40, 3.41, 6.32
common law, comparison …. 3.41–3.45
consent …. 3.42
defences …. 3.43–3.45, 6.32, 6.35
indirect force …. 3.41
provocation …. 3.43, 3.44, 6.35
self-defence …. 6.32
standard of proof …. 3.38
reasonable belief …. 3.19
remedies …. 3.75, 3.87
damages …. 3.75–3.84
 injunctions …. 3.85
limitation of actions …. 3.88
protection orders …. 3.86
self-defence …. 6.32
telephone calls …. 3.22
silence …. 3.23
text messages …. 3.22
threat of imminent harm …. 3.19, 3.20
ability to carry out threat …. 3.24–3.26
apprehension of force …. 3.27, 3.28, 3.29
conditional threats …. 3.29, 3.30
imminent requirement …. 3.21
knowledge of threat …. 3.24
mere words …. 3.22, 3.23
positive act …. 3.20
telephone calls …. 3.22, 3.23
text messages …. 3.22
vicarious liability of employer …. 20.37
Auditors’ reports
negligent misrepresentation …. 19.43
Australian Consumer Law
breach of statutory duty …. 18.7
defective products …. 9.120, 9.128, 9.129
remedies …. 9.128
requirements for actions …. 9.128
safety defect, definition …. 9.128
 time limit for actions …. 9.130
misleading or deceptive conduct see Misleading or deceptive conduct
misrepresentation, and …. 19.3, 19.92
overview …. 1.50
Australian Law Reform Commission
invasion of privacy …. 7.21, 7.28
statutory cause of action …. 7.29
types of interferences …. 7.30
vicarious liability …. 20.22

B
Bailment
at will …. 5.11
conversion …. 5.33, 5.89
actions between bailor and bailee …. 5.34
involuntary bailee …. 5.43, 5.47
re-delivery by bailee …. 5.46
third party interference …. 5.35
detinue …. 5.61
duty of care to bailors …. 9.123
overview …. 5.9
revocable bailment …. 5.11, 5.12
trespass to chattels …. 5.8, 5.9, 5.13
bailment at will …. 5.11
interference by third parties …. 5.12
revocable bailment …. 5.11, 5.12
 title to sue …. 5.10, 5.12
Bankruptcy
malicious prosecution …. 7.14
Barristers see also Solicitors
contractual relationship …. 9.111
immunity from suit …. 9.111
application of immunity …. 9.115
Australian position …. 9.114
other jurisdictions …. 9.113
rationale …. 9.112
scope of immunity …. 9.111
negligent misrepresentation, and …. 19.17
overview …. 9.110
standard of care …. 11.14
Battery see also Assault
aim of tort …. 3.3, 3.7
bodily contact …. 3.5, 3.7
anger or hostility …. 3.8, 3.9
everyday contact …. 3.7, 3.10–3.12
knowledge of contact …. 3.15
offensive contact …. 3.7
child sexual abuse …. 14.43
consent …. 3.11, 3.13, 3.14
implied consent …. 3.11, 3.14, 3.42, 6.7, 6.13
lack of consent …. 3.13
Queensland …. 3.42
 sports participants …. 6.7
contributory negligence …. 6.60
defence of property …. 6.37
direct application of force …. 3.3, 3.4, 3.41
application, meaning …. 3.6
bodily contact requirement …. 3.5, 3.7–3.12
examples …. 3.5
passive obstruction …. 3.6
elements …. 3.3
everyday contact …. 3.7, 3.10–3.12
implied consent …. 3.11
objective standard …. 3.12
evolution of law …. 1.39
fault …. 3.3, 3.16–3.18
contributory negligence …. 6.60
implied consent …. 3.11, 3.14, 6.13
Queensland …. 3.42
sports participants …. 6.7
indirect application of force …. 3.4, 3.41
intention …. 3.16, 3.17, 3.18
knowledge of contact …. 3.15
limitation of actions …. 3.88
child sexual abuse …. 14.43
overview …. 3.2, 3.3
provocation …. 3.43, 3.44, 6.35
Queensland position …. 3.37, 3.39
 assault, definition …. 3.4, 3.19, 3.37, 3.38, 3.39, 3.40, 3.41, 6.32
common law, comparison …. 3.41–3.45
consent …. 3.42
defences …. 3.43–3.45, 6.32, 6.35
indirect force …. 3.41
provocation …. 3.43, 3.44, 6.35
self-defence …. 6.32
standard of proof …. 3.38
remedies …. 3.75, 3.87
damages …. 3.75–3.84
injunctions …. 3.85
limitation of actions …. 3.88
protection orders …. 3.86
self-defence …. 6.31, 6.32
sports participants …. 6.7
Birth of child see Wrongful birth; Wrongful conception;
Wrongful life
Breach of duty
animals …. 26.32
anticipation of negligence …. 11.80, 11.81
employment relationship …. 11.81
sudden emergencies …. 11.82
balancing of factors …. 11.83, 11.86
calculus of negligence …. 11.83, 11.84
example of process …. 11.87
reasonable response …. 11.85, 11.86
civil liability legislation …. 8.16, 11.34, 11.35
application of provisions …. 11.37
common law …. 11.35, 11.36
medical practitioners …. 11.74–11.76
not insignificant risk …. 11.38, 11.44, 11.45
obvious risk …. 11.63
precautions against harm …. 11.49, 11.63, 11.64, 11.85
professional standards …. 11.72, 11.74, 13.82, 13.83
public authorities …. 10.131, 10.132
reasonable response to risk …. 11.49, 11.85
contributory negligence …. 13.17, 13.18
court procedure …. 11.88
appeals …. 11.93–11.96
availability of jury trials …. 11.92
control of proceedings …. 11.89
directions to jury …. 11.91
questions of fact …. 11.88
questions of law …. 11.88
withholding case from jury …. 11.90
failure to warn …. 11.62
obvious risks …. 11.62, 11.63
foreseeable risk …. 8.7, 8.8, 8.14, 11.38, 11.39
chain of events …. 11.41
hindsight …. 11.42
Ipp Report …. 8.15, 8.16, 11.38
knowledge of risk …. 11.39
 mere recognition …. 11.40
prospective determination …. 11.42
remote or unlikely risk …. 11.39, 11.51
hindsight …. 11.42, 11.48, 13.18
inference of negligence …. 11.89, 11.98
factual evidence …. 11.99
res ipsa loquitur …. 11.102–11.111
Ipp Report …. 8.15, 8.16, 11.38
medical practitioners …. 11.74–11.77
negligent misrepresentation …. 19.9, 19.53
question of fact …. 19.56
non-delegable duty …. 20.81
child sexual abuse …. 20.81, 20.82
intentional acts …. 20.81
strict liability …. 20.82
not insignificant risk …. 11.38, 11.44
application of provision …. 11.44
meaning …. 11.44, 11.45
obvious risks …. 11.62
definition …. 11.63
failure to warn …. 11.62, 11.63
onus of proof …. 11.97, 11.111
equally consistent evidence …. 11.98
factual evidence …. 11.99
inferences …. 11.98, 11.99
no case to answer …. 11.100, 11.101
 res ipsa loquitur …. 11.104, 11.106, 11.111
overview …. 8.4, 8.14, 11.1, 11.3, 11.34
precautions against harm …. 11.46, 11.49, 11.57, 11.64
alternative systems …. 11.65
available at time of breach …. 11.58
balancing of factors …. 11.83, 11.86
burden of taking …. 11.60
civil liability legislation …. 11.49, 11.63, 11.64, 11.85
expense of precautions …. 11.60, 11.61
introduction after accident …. 11.66
more reasonable methods …. 11.65
obvious risks …. 11.62, 11.63
other considerations …. 11.64–11.66
reasonable precautions …. 11.59, 11.60
subsequent measures …. 11.66
warnings …. 11.62, 11.63, 11.86, 11.87
professional practice standards …. 11.71, 13.81
advice or warnings …. 11.74
civil liability legislation …. 11.72, 11.74, 13.82, 13.83
public authorities …. 10.131, 10.132
questions of law …. 8.22, 11.88
reasonable foreseeability …. 8.7, 8.8, 8.14, 11.38–11.42, 11.43
criticisms of approach …. 11.43
Ipp report …. 8.15, 8.16, 11.38
remote or unlikely risk …. 11.39, 11.51
reasonable response to risk …. 11.46, 11.47, 11.65
 anticipation of negligence …. 11.80–11.82
balancing of factors …. 11.83–11.87
civil liability legislation …. 11.49, 11.85
customary standards …. 11.69, 11.70
hindsight …. 11.48
precautions against harm …. 11.46, 11.49, 11.57–11.66, 11.85, 11.86
probability of harm …. 11.51, 11.52, 11.56, 11.86
professional practice standards …. 11.71–11.74
relevant factors …. 11.46, 11.50
seriousness of harm …. 11.53–11.56
social utility of activity …. 11.67, 11.68
statutory standards …. 11.78, 11.79
res ipsa loquitur …. 11.102, 11.103
adducing specific evidence …. 11.105
control of res …. 11.110
onus of proof …. 11.104, 11.106, 11.111
ordinary explanation for injury …. 11.108, 11.109
type of accident …. 11.107
scope of duty, and …. 9.6, 9.7
seriousness of harm …. 11.53, 11.54
characteristics of plaintiff …. 11.55
time for assessing …. 11.56
social utility of activity …. 11.67
broadening of concept …. 11.68
standard of proof …. 11.97
equally consistent evidence …. 11.98
 factual evidence …. 11.99
inferences …. 11.98, 11.99
no case to answer …. 11.100, 11.101
res ipsa loquitur …. 11.102–11.111
statutory standards …. 11.78
non-binding material …. 11.79
Breach of statutory duty
Canadian position …. 18.5
causation …. 18.6, 18.34
licensing requirements …. 18.35
one-person companies …. 18.36
contributory negligence …. 18.40
criticisms of private action …. 18.5
defences …. 18.37
contributory negligence …. 18.40
illegality …. 18.39
voluntary assumption of risk …. 18.38
defining characteristic …. 18.2
delegated legislation …. 18.19
elements …. 18.6
employee safety …. 18.3, 18.11, 18.12, 18.16
establishing breach …. 18.6, 18.29, 18.31
absolute obligation …. 18.29, 18.30
civil liability legislation …. 18.33
public authorities …. 18.33
standard of care …. 18.32
government outsourcing, and …. 18.4
historical background …. 18.3
employee safety …. 18.3
private enterprise …. 18.4
illegality defence …. 18.39
imposition of duty on defendant …. 18.6, 18.20, 18.21
employers …. 18.22, 18.23
vicarious liability …. 18.23
inference of available action …. 18.8
adequacy of penalty for breach …. 18.18
delegated legislation …. 18.19
existing common law duty …. 18.10
history of statute …. 18.9
nature of damage …. 18.18
penalty for breach …. 18.17, 18.18
pre-existing law …. 18.9
protected class …. 18.16
purpose of statute …. 18.11, 18.12
rebuttal of presumptions …. 18.18
specified standard of conduct …. 18.13–18.15
subject matter of statute …. 18.11, 18.18
kind of harm intended to prevent …. 18.6, 18.24, 18.25
licensing requirements …. 18.35
nature of duty …. 18.29, 18.31
absolute obligation …. 18.29, 18.30
civil liability legislation …. 18.33
 public authorities …. 18.33
standard of care …. 18.32
overview …. 18.1, 18.2
private cause of action …. 18.6, 18.7
delegated legislation …. 18.19
express provisions …. 18.7
inference of availability …. 18.8–18.19
silence as to availability …. 18.8
protected class …. 18.16
minors …. 18.26, 18.27
plaintiff as a member …. 18.6, 18.26–18.28
public in general …. 18.27
public authorities …. 18.33
United Kingdom …. 18.5
vicarious liability …. 18.23, 18.38
voluntary assumption of risk …. 18.38
Builders see Defective structures
Bullying
employer’s duty of care …. 9.44, 10.76
Business interests see also Interference with business interests
duty of care …. 10.117
employer’s duty …. 10.75
relational loss …. 10.94–10.96

C
Capacity to sue and be sued
 intellectually disabled persons …. 1.26, 1.27
minors …. 1.21, 1.22
guardian ad litem …. 1.22
intention …. 1.23
liability for torts …. 1.23
next friend …. 1.22
parent and child …. 1.24, 1.25
overview …. 1.20
Cattle trespass see Animals
Causation
antecedent causes …. 12.25, 12.28
breach of statutory duty …. 18.6, 18.34
licensing requirements …. 18.35
one-person companies …. 18.36
‘but for’ test …. 8.19, 12.22, 12.23, 12.32
antecedent causes …. 12.25
asbestos exposure …. 12.50
civil liability legislation …. 12.33, 12.34, 12.36, 12.37, 12.40
failure to warn …. 12.26
limitations of test …. 12.24, 12.25, 12.27, 12.69
civil liability legislation …. 12.3, 12.33
‘but for’ test …. 12.33, 12.34, 12.36, 12.37, 12.40
evidentiary gaps …. 12.33, 12.39, 12.40
exceptional cases …. 12.39, 12.40
legally significant cause …. 12.87, 12.88
‘necessary condition’ test …. 12.34–12.38
 onus of proof …. 12.54, 12.55
scope of liability …. 12.57, 12.58, 12.87, 12.88
common law tests …. 12.3, 12.22, 12.27–12.32, 12.34
‘but for’ test …. 12.23–12.26, 12.32
‘common sense and experience’ test …. 12.22, 12.27, 12.32
antecedent causes …. 12.28
application of test …. 12.28, 12.29, 12.30
multiple causes …. 12.28, 12.29
normative considerations …. 12.28, 12.34
purpose of cause of action …. 12.30, 12.31
use of test …. 12.28, 12.30
contributory negligence …. 13.19, 13.20
plaintiff’s negligence …. 13.20
relevant conduct …. 13.19
evidentiary gaps …. 8.20, 12.33, 12.39, 12.40
exceptional cases …. 12.40–12.49
exceptional cases …. 12.39, 12.40, 12.41, 12.48, 12.52
material contribution to risk …. 12.44, 12.45, 12.47, 12.49
material increase in risk …. 12.42, 12.45, 12.46
meaning …. 12.41
mesothelioma …. 12.46, 12.47, 12.49
multiple or complex causes …. 12.43
multiple tortfeasors, distinction …. 12.52
nature of cases …. 12.42
intervening acts …. 12.59, 12.69, 12.70, 12.75
medical treatment …. 12.79, 12.80
 natural phenomenon …. 12.72
plaintiff’s acts or omissions …. 12.71, 12.72
reasonable foreseeability …. 12.75, 12.77–12.80
requirements …. 12.73, 12.74, 12.75
The Orpesa …. 12.73
third parties …. 12.72
voluntary, deliberate or negligent acts …. 12.74, 12.75, 12.76
Ipp Report …. 8.20, 12.3
onus of proof …. 12.55
scope of liability …. 12.58
legally significant cause …. 12.81, 12.86, 12.88
civil liability legislation …. 12.87, 12.88
failure to warn …. 12.88, 12.89
multiple causes …. 12.85
public policy …. 12.82, 12.83, 12.84
multiple causes …. 12.24, 12.28, 12.29, 12.69, 12.85
multiple tortfeasors …. 12.51, 12.52
exceptional cases, distinction …. 12.52
‘necessary condition’ test …. 12.34, 12.35
cases …. 12.35–12.38
failure to warn …. 12.38
more than one condition …. 12.35
normative considerations …. 12.28, 12.34, 12.81
onus of proof …. 12.53
civil liability legislation …. 12.54, 12.55
Ipp report …. 12.55
 overview …. 8.19, 12.2, 12.21
reasonable foreseeability …. 12.61, 12.64
‘egg-shell skull’ rule …. 12.66–12.68
events leading to damage …. 12.64
intervening acts …. 12.75, 12.77–12.80
meaning …. 12.65
real risk of damage …. 12.62, 12.63
wrongful death …. 16.12, 16.15
scope of liability …. 12.56, 12.60
civil liability legislation …. 12.57, 12.58, 12.87, 12.88
considerations …. 12.57, 12.58, 12.59, 12.81
depth of analysis …. 12.60
intervening acts …. 12.59, 12.69–12.80
legally significant cause …. 12.81–12.89
normative considerations …. 12.81
reasonable foreseeability …. 12.61–12.68, 12.75, 12.77–12.80
remoteness of damage …. 12.59, 12.61–12.68
standard of proof …. 12.53
wrongful death …. 16.11
‘egg-shell skull’ rule …. 16.14
reasonable foreseeability …. 16.12, 16.15
remoteness of damage …. 16.11, 16.13
Children see Minors
Civil liability legislation
background to introduction …. 1.51
breach of duty …. 8.16, 11.34, 11.35
 application of provisions …. 11.37
common law …. 11.35, 11.36
medical practitioners …. 11.74–11.76
not insignificant risk …. 11.38, 11.44, 11.45
obvious risks …. 11.63
precautions against harm …. 11.49, 11.63, 11.64, 11.85
professional practice standards …. 11.72, 11.74, 13.82, 13.83
public authorities …. 10.131, 10.132
reasonable response to risk …. 11.49, 11.85
causation …. 12.3, 12.33
‘but for’ test …. 12.33, 12.34, 12.36, 12.37, 12.40
evidentiary gaps …. 12.33, 12.39, 12.40
exceptional cases …. 12.39, 12.40
legally significant cause …. 12.87, 12.88
‘necessary condition’ test …. 12.34–12.38
onus of proof …. 12.54, 12.55
scope of liability …. 12.57, 12.58, 12.87, 12.88
concurrent tortfeasors …. 21.32
proportionate liability …. 21.32–21.42
contracts …. 1.30
contributory negligence …. 13.5
intoxication …. 13.12, 13.33–13.41, 13.44, 13.45
100% apportionment …. 13.26
standard of care …. 13.9
damage requirement …. 12.3, 12.6
harm, definition …. 12.6
 scope of liability …. 12.57, 12.58, 12.87, 12.88
dangerous recreational activities …. 13.67, 13.70
definition …. 13.67
obvious risk …. 13.68, 13.69, 13.70
relevant principles …. 13.69
significant degree of risk …. 13.69
defences …. 13.1, 13.80
good Samaritans …. 13.99, 13.100
illegal activity …. 13.77–13.79
inherent risk …. 13.96
medical professionals …. 11.73, 13.88, 13.89, 13.91, 13.92
obvious risk …. 13.93
professional standards …. 13.82–13.87, 13.91
public safety entities …. 13.101
volunteers …. 13.102, 13.103
good Samaritans …. 11.29, 13.99, 13.100
gratuitous domestic services …. 15.105
meaning …. 15.106
nursing care …. 15.106
gratuitous services …. 15.96, 15.101
future services …. 15.100
hourly rate …. 15.103
interpretation issues …. 15.99, 15.100
meaning …. 15.102
no fault compensation …. 15.97
thresholds and limits …. 15.98
illegal activities …. 13.77, 13.79
indictable offences …. 13.78
reduction in damages …. 13.78
intentional infliction of psychiatric injury …. 7.8
intoxication …. 13.12, 13.33
defendant intoxicated …. 13.38, 13.39, 13.63
definitions …. 13.33
motor vehicle accidents …. 13.44, 13.45, 13.62, 13.63
plaintiff intoxicated …. 13.34–13.37, 13.62
standard of care …. 11.27
voluntary assumption of risk …. 13.62, 13.63
medical emergencies …. 11.29
medical professionals …. 11.74, 13.88
advice and warnings …. 11.74–11.76, 13.91, 13.92
Bolam principle …. 11.73, 11.76
health professional, definition …. 13.89
peer professional practice …. 13.88, 13.89
Western Australia …. 11.76, 13.89
non-delegable duty …. 20.84
non-pecuniary general damages …. 15.108
assessment …. 15.111–15.115
court’s considerations …. 15.115
injury scale values …. 15.112, 15.114
interest …. 15.147
Queensland …. 15.112–15.115
rules of court …. 15.113
 terminology …. 15.108
thresholds and limits …. 15.109, 15.110
whole person impairment …. 15.114
obvious risk …. 11.63, 13.53, 13.62
animals …. 26.31
dangerous recreational activities …. 13.68, 13.69
defence, as …. 13.93
definition …. 11.63, 13.53
duty to warn …. 11.63, 13.93
professionals …. 13.87
voluntary assumption of risk …. 13.53, 13.68, 13.69
occupiers of premises …. 9.17
overview …. 1.51
personal injury damages …. 3.78, 15.152
dependency claims …. 16.45
future economic losses …. 15.142
gratuitous domestic services …. 15.105, 15.106
gratuitous services …. 15.96–15.103
illegal activities, and …. 13.77–13.79
loss of earning capacity …. 15.74, 15.81, 15.82
non-pecuniary general damages …. 15.108–15.115, 15.147
structured settlements …. 15.37
trespass to person …. 3.78
professional standards …. 11.18, 11.72, 13.82
advice or warnings …. 11.74, 13.86, 13.91, 19.55
defence, as …. 13.83
 harm, definition …. 13.86
negligent misrepresentation …. 19.55
obvious risks …. 13.87
peer professional opinion …. 13.85
professional, definition …. 13.84
proportionate liability …. 21.32
apportionable claims …. 21.34
apportioning liability …. 21.41, 21.42
concurrent wrongdoer, definition …. 21.35, 21.36, 21.37, 21.38
excluded claims …. 21.39, 21.40
fraudulent wrongdoers …. 21.40
intentional wrongdoers …. 21.40
requirements …. 21.33
psychiatric injury …. 10.59
consequential psychiatric injury …. 10.46
foreseeability of harm …. 10.59
limits on liability …. 10.69, 10.70
recognised psychiatric illness …. 10.45
public authorities …. 10.131, 10.132
breach of statutory duty …. 18.33
common law principles …. 10.134
function, definition …. 10.133
negligent misrepresentation …. 19.41
policy or operational decisions …. 10.138
road authorities …. 10.148, 10.149, 10.150
standard of care …. 11.8
 contributory negligence …. 13.9, 13.12
emergencies …. 11.29
intoxication …. 11.27, 13.12
knowledge at time …. 11.18
medical emergencies …. 11.29
medical practitioners …. 11.74–11.76
professionals …. 11.18, 11.72, 11.74, 13.82
trespass to land …. 4.21
trespass to person …. 3.78
voluntary assumption of risk …. 13.53
avoidance of risk …. 13.56
dangerous recreational activities …. 13.67–13.70
intoxication …. 13.62, 13.63
Civil proceedings
malicious prosecution …. 7.14
Clergy
vicarious liability …. 20.26
Clubs see Occupiers of premises
Commonwealth
duty of care …. 9.84
immigration detainees …. 9.84
Compensation see Damages; Personal injury damages; Wrongful
death
Competition and Consumer Act see Australian Consumer Law;
Misleading or deceptive conduct
Concurrent tortfeasors see also Contribution between tortfeasors
causation …. 12.51, 12.52
costs …. 21.12
joint tortfeasors …. 21.2, 21.4, 21.8, 21.11
breach of common duty …. 21.5
Brinsmead v Harrison …. 21.4, 21.6, 21.10
engagement in concerted action …. 21.5
exemplary damages …. 15.20, 21.7
legislation …. 21.6–21.8, 21.10
several tortfeasors, distinction …. 21.4, 21.10
vicarious liability …. 21.5
legislation …. 21.10, 21.11
Brinsmead v Harrison …. 21.6, 21.10
costs …. 21.12
joint tortfeasors …. 21.6–21.8, 21.10
limits on damages …. 21.12, 21.14
proportionate liability …. 21.32–12.42
limits on damages …. 21.12, 21.14
overview …. 12.51, 21.2, 21.3, 21.11, 21.28
proportionate liability …. 21.30, 21.32
apportionable claims …. 21.34
apportioning liability …. 21.41, 21.42
background to proposals …. 21.28, 21.30, 21.31
civil liability legislation …. 21.32–21.42
concurrent wrongdoer, definition …. 21.35, 21.36, 21.37, 21.38
excluded claims …. 21.39, 21.40
fraudulent wrongdoers …. 21.40
 intentional wrongdoers …. 21.40
Ipp report …. 21.32
requirements …. 21.33
several tortfeasors …. 21.2, 21.4, 21.9, 21.11
joint tortfeasors, distinction …. 21.4, 21.10
legislation …. 21.10
single actions …. 21.13
joinder of parties …. 21.14
solidary liability …. 21.3, 21.28
effect of principle …. 21.29
Ipp report …. 21.32
successive tortfeasors, distinction …. 21.3
Consent see also Volenti non fit injuria
battery …. 3.11, 3.13, 3.14, 6.13
everyday contact …. 3.11
Queensland …. 3.42
sports participants …. 6.7
capacity to consent …. 6.18
guardianship legislation …. 6.18, 6.24
minors …. 6.13, 6.19–6.21
defamation …. 23.100, 23.101
emergency medical treatment …. 6.22
guardianship legislation …. 6.24
minors …. 6.23
statutory provisions …. 6.23
fraud …. 6.10, 6.11, 6.17
implied consent …. 3.11
battery …. 3.11, 3.14, 3.42, 6.7, 6.13
defamation …. 23.101
sports participants …. 6.7
trespass to land …. 4.23, 4.27, 4.28, 4.29, 4.30, 4.31, 4.33, 6.6, 6.9, 6.28
medical treatment …. 6.14
capacity to consent …. 6.13, 6.18–6.21
emergency treatment …. 6.22–6.24
fraud …. 6.10, 6.11, 6.17
guardianship legislation …. 6.18, 6.24
minors …. 6.13, 6.19–6.21, 6.23
requirements for validity …. 6.15
right to refuse …. 6.25, 6.26
scope of consent …. 6.16
voluntariness …. 6.10, 6.11, 6.17
negligence …. 13.48
passing off …. 24.28
private nuisance …. 25.61
revocation or withdrawal …. 4.31, 4.38, 4.41, 6.27, 6.29
communication …. 4.32
implied licence …. 4.33, 6.28
notice …. 4.32, 4.33
police offices …. 4.35, 6.28
prior communication …. 4.33
reasonable time to leave …. 4.34, 6.28
trespass defences …. 6.5, 6.8
 battery …. 3.13, 6.7, 6.13
capacity to consent …. 6.13, 6.18–6.21
criminal acts …. 6.9
duress …. 6.12
fraud …. 6.10, 6.11
medical treatment …. 6.10, 6.11, 6.14–6.26
minors …. 6.13, 6.19–6.21, 6.23
requirements for validity …. 6.8
revocation of consent …. 6.27–6.29
scope of consent …. 6.9
sports participants …. 6.7
voluntariness …. 6.10–6.12
trespass to land …. 4.23, 4.24
different purpose …. 4.25
implied licence …. 4.23, 4.27, 4.28, 4.29, 4.30, 4.31, 4.33, 6.6, 6.9, 6.28
mixed purposes …. 4.26
revocation of consent …. 4.31–4.35, 4.38, 4.41, 6.28
Conspiracy
agreement between persons …. 24.61, 24.62
companies …. 24.63
purpose of agreement …. 24.67, 24.70
criminal liability …. 24.60
damage requirement …. 24.61, 24.71
damages …. 24.73
exemplary damages …. 24.74
definition …. 24.60
 elements …. 24.61
intention …. 24.61, 24.64, 24.66
agreement of purpose …. 24.67
breach of contract …. 24.69
lawful act …. 24.64, 24.70
plaintiff as target …. 24.65
purpose of agreement …. 24.67, 24.70
statutory breach …. 24.69
unlawful act …. 24.64, 24.68, 24.69
justification defence …. 24.72
lawful act to injure …. 24.64, 24.70
justification defence …. 24.72
overview …. 24.1, 24.60
plaintiff as target …. 24.65
purpose of agreement …. 24.67, 24.70
unlawful act to injure …. 24.64, 24.68
breach of contract …. 24.69
statutory breach …. 24.69
Consumer leases
repossession of goods …. 5.16
Consumer protection see also Australian Consumer Law
statutory provisions …. 1.50
Contemptuous damages …. 1.17, 15.18
Contract see also Interference with contractual relations
civil liability legislation …. 1.30
concurrent liability …. 1.29
 conspiracy …. 24.69
conversion …. 5.30
damages for breach …. 1.30
defective products …. 1.41, 9.121
employer’s duty to employees …. 9.26
safe workplace …. 9.26, 9.29
evolution of negligence …. 1.40, 1.41
exclusion of liability clauses …. 13.1, 13.104
interpretation …. 13.104, 13.105
false imprisonment …. 3.63
innocent misrepresentation …. 19.2
negligence, and …. 1.30
overview …. 1.30
solicitor’s duty …. 9.107, 9.111
torts, and …. 1.29
differences between actions …. 1.30
wrongful death …. 16.1, 16.4
Contractors see Independent contractors
Contribution between tortfeasors
assessment of contribution …. 21.22, 21.29
just and equitable …. 21.22, 21.24
possible outcomes …. 21.23
claimant requirements …. 21.17
common law …. 21.15, 21.16
indemnities …. 21.25, 21.27
Lister v Romford Ice …. 21.25, 21.27
 statutory modification …. 21.26
legislation …. 21.6, 21.16
assessment of contribution …. 21.22
liability of claimant …. 21.17
liability of tortfeasor …. 21.17, 21.19
if sued, meaning …. 21.20
res judicata …. 21.21
limitation of actions …. 14.64–14.67
overview …. 21.15, 21.18
requirements for claimants …. 21.17
same damage …. 21.17
Contributory negligence
animals …. 26.21
apportionment of liability …. 1.49, 6.60, 13.5, 13.6, 13.21
appeals …. 13.46, 13.47
assessing culpability …. 13.22, 13.23, 13.24
court’s discretion …. 13.22
intoxication …. 13.40, 13.41
‘just and equitable’ apportionment …. 13.21, 13.22–13.24
100% apportionment …. 13.25, 13.26
private nuisance …. 25.59
reasonableness of conduct …. 13.24
battery …. 6.60
breach of duty …. 13.17, 13.18
hindsight …. 13.18
breach of statutory duty …. 18.40
causation …. 13.19, 13.20
plaintiff’s negligence …. 13.20
relevant conduct …. 13.19
civil liability legislation …. 13.5
intoxication …. 13.12, 13.33–13.41, 13.44, 13.45
100% apportionment …. 13.26
standard of care …. 13.9
common law …. 1.49, 13.2, 13.5, 13.6
‘agony of the moment’ principle …. 13.4
‘last opportunity’ rule …. 13.3
modern position …. 13.5
original position …. 13.2–13.4
conversion …. 6.61
dangerous animals …. 26.14
deceit …. 19.90
defeat of claims …. 13.25, 13.26
domestic service by child …. 17.22
elements …. 13.7
emergencies …. 13.14
employees …. 13.15
knowledge of dangerous conduct …. 13.16
loss of employee services …. 17.9
establishing …. 13.7
failure to take reasonable care …. 13.8
breach of standard …. 13.17, 13.18
objective standard …. 13.8, 13.9
 standard of care …. 13.8–13.16
failure to use safety devices …. 13.28
reduction of damages …. 13.29, 13.30
fault or negligence …. 6.60
intoxication …. 13.12, 13.13, 13.31, 13.32
apportionment of liability …. 13.40, 13.41
civil liability legislation …. 13.12, 13.33–13.41, 13.44, 13.45
defendant intoxicated …. 13.38, 13.39
definitions …. 13.33
impairment of capacity …. 13.36
motor vehicle accidents …. 13.12, 13.42–13.45
plaintiff intoxicated …. 13.34–13.37
rebuttal of presumption …. 13.35, 13.39
statutory presumptions …. 13.12, 13.31–13.45
minors …. 13.11
misleading or deceptive conduct …. 19.112
negligent misrepresentation …. 19.59
objective standard …. 13.8, 13.9
overview …. 1.49, 6.60, 13.1, 13.2, 13.5, 25.101
private nuisance …. 25.59, 25.101
public nuisance …. 25.101
spouse …. 17.20
standard of care …. 13.9, 13.10
child plaintiffs …. 13.11
civil liability legislation …. 13.9, 13.12
emergencies …. 13.14
 employees …. 13.15, 13.16
intoxication …. 13.12, 13.13
objective standard …. 13.8, 13.9
statutory modification …. 1.49, 13.5
statutory presumptions …. 13.5, 13.27
failure to use safety devices …. 13.28–13.30
intoxication …. 13.12, 13.31–13.45
statutory schemes …. 13.5, 13.6
trespass defences …. 6.60
failure to take care …. 6.63
unintentional consequences …. 6.62
wrong, definition …. 6.61
wrong, definition …. 6.61, 13.6
wrongful death …. 16.44
Conversion
actual possession …. 5.5, 5.30
bailment …. 5.33, 5.89
actions between bailor and bailee …. 5.34
involuntary bailee …. 5.43, 5.47
re-delivery by bailee …. 5.46
third party interference …. 5.35
cheques …. 5.88
constructive possession …. 5.5, 5.30
contributory negligence …. 6.61
damages …. 5.57, 5.73, 5.83
aggravated damages …. 5.76
 cheques …. 5.88
damaged or destroyed goods …. 5.75
date of conversion …. 5.85, 5.86
exemplary damages …. 5.76
foreseeable economic loss …. 5.90
increase in value …. 5.87
interest in goods …. 5.74
limitation of actions …. 5.102
limited interest of plaintiff …. 5.89
onus of proving market value …. 5.85
return of goods …. 5.84
value of converted goods …. 5.85, 5.87
defences …. 6.45, 6.64
contributory negligence …. 6.61
illegal acts …. 6.67
jus tertii …. 6.45
loss of possession …. 6.46
destruction of chattel …. 5.41
detinue, distinction …. 5.57
direct interference …. 5.29, 5.39
elements …. 5.29
fault …. 5.29, 5.55
finders of goods …. 5.38
fraudulent misrepresentation …. 19.66
injunctions …. 5.98
intention …. 5.40, 5.48, 5.55
limitation of actions …. 5.102, 14.12
commencement of period …. 5.103, 14.12
more than one wrongful act …. 5.104
mining rights …. 4.18
mistake …. 6.64
overview …. 1.5, 5.1, 5.29
possession of goods …. 5.5
actual possession …. 5.30
company goods and equipment …. 5.32
constructive possession …. 5.30
false representations …. 5.54
finders …. 5.38
immediate right …. 5.30, 5.33
occupiers of land …. 5.37
ownership without possession …. 5.31
remedies …. 5.71
damages …. 5.73–5.76, 5.83–5.90, 5.102
injunctions …. 5.98
self-help …. 5.72
representations of possession …. 5.54
repugnant dealing …. 5.29, 5.39
intention …. 5.40, 5.48
representations of possession …. 5.54
wrongful delivery …. 5.44–5.47
wrongful destruction or alteration …. 5.41
wrongful detention …. 5.48, 5.49
 wrongful disposition …. 5.53
wrongful taking …. 5.42, 5.43
wrongful use …. 5.50–5.52
sale and delivery …. 5.53
purchasers in good faith …. 5.53
title to sue …. 5.29, 5.30
bailment …. 5.33–5.35
co-owners …. 5.36
company goods and equipment …. 5.32
finders …. 5.38
occupiers of land …. 5.37
ownership without possession …. 5.31
terms of contract …. 5.30
wrongful delivery …. 5.44
involuntary bailee …. 5.47
innocent delivery …. 5.45
re-delivery by bailee …. 5.46
wrongful destruction or alteration …. 5.41
wrongful detention …. 5.48
intention to retain …. 5.48
provisional refusal …. 5.49
wrongful disposition …. 5.53
purchasers in good faith …. 5.53
wrongful taking …. 5.42
innocent receivers …. 5.43
involuntary bailee …. 5.43
 wrongful use …. 5.50, 5.51, 5.52
Corporal punishment …. 6.54
Corporations
conspiracy …. 24.63
defamation …. 22.83
aggravated damages …. 23.125
damages …. 22.83, 23.125
excluded corporations …. 22.84, 22.85
restricted right to action …. 22.84
subsidiaries …. 22.85
interference with contractual relations …. 24.45
misleading or deceptive conduct …. 19.95
directors …. 19.97
employees or agents …. 19.97
states or territories …. 19.96
Costs
concurrent tortfeasors …. 21.12
malicious prosecution …. 7.18
nominal damages …. 15.17
personal injuries damages …. 15.149
Criminal law
conspiracy …. 24.60
deterrence and punishment …. 1.34, 1.35
initiation of proceedings …. 1.31
intention …. 1.33
onus of proof …. 1.32
 torts, and …. 1.31
deterrence and punishment …. 1.34, 1.35
intention …. 1.33
onus of proof …. 1.32
Criminal offences
deprivation of liberty …. 3.49
domestic violence …. 3.35
stalking …. 3.33, 3.34
victims of crime compensation …. 1.48, 3.34
Criminal prosecution
malicious prosecution …. 7.14
Crown authority
defence to trespass …. 6.59
seizure and destruction of property …. 6.59

D
Damage requirement see also Causation
conspiracy …. 24.61, 24.71
deceit …. 19.67, 19.82
reasonable foreseeability …. 19.83, 19.85
injurious falsehood …. 22.97, 24.89, 24.96
reasonable foreseeability …. 24.97
special damage …. 24.97
interference with contractual relations …. 24.40, 24.55
intimidation …. 24.82
legally significant cause …. 12.81, 12.86, 12.88
 civil liability legislation …. 12.87, 12.88
failure to warn …. 12.88, 12.89
multiple causes …. 12.85
public policy …. 12.82, 12.83, 12.84
malicious prosecution …. 7.11, 7.18
misfeasance in public office …. 18.53, 18.62
foreseeability of harm …. 18.63
negligence …. 8.4, 8.17, 12.1, 12.2, 25.95, 25.100
considerations …. 12.2
Ipp report …. 12.3, 12.58
questions of law …. 8.22
reasonable foreseeability …. 8.7, 8.8, 8.18, 12.61–12.68, 12.75,
12.77–12.80
recognised kind of damage …. 12.2, 12.4–12.6
recognition of damage …. 12.7–12.20
remoteness of damage …. 8.8, 12.59, 12.61–12.68
scope of liability …. 12.2, 12.56–12.89
negligent misrepresentation …. 19.9, 19.57
reasonable foreseeability …. 19.58
nuisance …. 25.1, 25.100
overview …. 12.1
passing off …. 24.8, 24.20
private nuisance …. 25.4, 25.53, 25.97, 25.100
public nuisance …. 25.77, 25.97, 25.100
reasonable foreseeability …. 8.7, 8.8, 8.18, 12.61, 12.64
deceit …. 19.83, 19.85
 ‘egg-shell skull’ rule …. 12.66–12.68
events leading to damage …. 12.64
injurious falsehood …. 24.97
intervening acts …. 12.75, 12.77–12.80
meaning …. 12.65
negligent misrepresentation …. 19.58
private nuisance …. 25.53
real risk of damage …. 12.62, 12.63
wrongful death …. 16.12, 16.15
recognised kind of damage …. 12.2, 12.4, 12.7
alternative terms …. 12.5
civil liability legislation …. 12.6
recognition of damage …. 12.7, 12.8
anxiety or vexation …. 12.15
grief …. 12.16
illegal activities …. 12.9
loss of chance …. 12.18–12.20
psychiatric illness …. 12.16, 12.17
unquantifiable loss …. 12.10
wrongful birth …. 12.13
wrongful conception …. 12.14
wrongful life …. 12.11, 12.12
remoteness of damage …. 12.59, 12.61
reasonable foreseeability …. 8.8, 12.61–12.68
wrongful death …. 16.11, 16.13
scope of liability …. 12.2, 12.56, 12.60
 civil liability legislation …. 12.57, 12.58, 12.87, 12.88
considerations …. 12.57, 12.58, 12.59, 12.81
depth of analysis …. 12.60
intervening acts …. 12.59, 12.69–12.80
legally significant cause …. 12.81–12.89
normative considerations …. 12.81
reasonable foreseeability …. 12.61–12.68, 12.75, 12.77–12.80
remoteness of damage …. 12.59, 12.61–12.68
Damages see also Personal injury damages; Property damage
aggravated damages see Aggravated damages
breach of contract …. 1.30
categories of damages …. 1.17, 15.13–15.28
compensatory damages …. 1.17, 1.34, 15.25–15.28
aim of damages …. 15.28, 15.31
‘egg-shell skull’ rule …. 15.30
general damages …. 15.27
indemnity principle …. 15.31, 15.32, 15.133
loss of employee services …. 17.8
lump sum rule …. 15.36
mitigation of damage …. 15.39–15.44
once and for all rule …. 15.33–15.35
special damages …. 15.27
trespass to land …. 4.54–4.60
trespass to person …. 3.77, 3.78, 3.84
concurrent tortfeasors …. 21.12, 21.14
conspiracy …. 24.73, 24.74
contemptuous damages …. 1.17, 15.18
conversion …. 5.57, 5.73, 5.83
aggravated damages …. 5.76
cheques …. 5.88
damaged or destroyed goods …. 5.75
date of conversion …. 5.85, 5.86
exemplary damages …. 5.76
foreseeable economic loss …. 5.90
increase in value …. 5.87
interest in goods …. 5.74
limitation of actions …. 5.102
limited interest of plaintiff …. 5.89
onus of proving market value …. 5.85
return of goods …. 5.84
value of converted goods …. 5.85, 5.87
costs …. 15.17
deceit …. 19.84, 19.88
aggravated damages …. 19.89
consequential loss …. 19.84
distress …. 19.88
exemplary damages …. 19.89
loss of profits …. 19.87
physical injury …. 19.88
psychological injury …. 19.88
purchasers of goods …. 19.86
reasonable foreseeability of loss …. 19.85
defamation see Defamation
detinue …. see Detinue
‘egg-shell skull’ rule …. 15.30
employers …. 17.1
loss of employee services …. 17.7–17.9
exemplary see Exemplary damages
general damages …. 15.27
indemnity principle …. 15.31, 15.32, 15.133
injurious falsehood …. 24.98
interference with contractual relations …. 24.58
intimidation …. 24.84, 24.85
loss of consortium and servitium …. 17.10, 17.17–17.19
contributory negligence …. 17.20
wife’s position …. 17.11
wrongful death …. 16.31
loss of employee services …. 17.7, 17.8
contributory negligence …. 17.9
lump sum rule …. 15.36
malicious prosecution …. 7.19
misleading or deceptive conduct …. see Misleading or deceptive
conduct
mitigation of damage …. 15.39–15.44
negligent misrepresentation …. 19.60–19.61
nominal damages …. 1.17, 15.14–15.17
trespass …. 15.14
trespass to land …. 4.52
 trespass to person …. 3.76
once and for all rule …. 15.33–15.35
overview …. 1.16, 1.30, 1.34, 15.1, 15.12
parents …. 17.1
domestic service by child …. 17.21, 17.24
seduction of daughter …. 17.24
passing off …. 24.30
personal injury see Personal injury damages
private nuisance …. see Private nuisance
property damage …. 15.45
benefit from damage …. 15.47
consequential losses …. 15.49–15.52
cost of repairs …. 15.46
diminished value …. 15.46
‘egg-shell skull’ rule …. 15.30
loss of use of funds …. 15.50, 15.51
opportunity cost …. 15.51
profit-making property …. 15.49
replacement costs …. 15.48
public nuisance …. 25.102
restitutio in integrum …. 15.51
special damages …. 15.27
spouse …. 17.1
contributory negligence …. 17.20
husband’s action …. 17.10, 17.17–17.20
loss of consortium and servitium …. 16.31, 17.10, 17.11, 17.17–17.20
 wrongful death …. 16.31
trespass to chattels …. 5.57, 5.73, 5.77
aggravated damages …. 5.76
cost of repairs …. 5.80
damaged or destroyed goods …. 5.75, 5.79
exemplary damages …. 5.76
foreseeable consequential loss …. 5.81
interest in goods …. 5.74
limitation of actions …. 5.102
non-economic loss …. 5.82
permanent deprivation of goods …. 5.78
sale without repair …. 5.80
trespass to land …. 4.51, 4.54, 4.70
aggravated damages …. 4.61, 4.63, 4.64
benefit from trespass …. 4.53
consequential losses …. 4.59
cost of reinstatement …. 4.57, 4.58
exemplary damages …. 4.61, 4.62
material damage …. 4.55
mental trauma …. 4.64
no damage to land …. 4.52
severance of chattels …. 4.60
value of land …. 4.56, 4.57, 4.58
trespass to person …. 3.75, 3.77, 3.84
aggravated damages …. 3.79, 3.80–3.82, 3.84
civil liability legislation …. 3.78
 exemplary damages …. 3.79, 3.83, 3.84
no loss suffered …. 3.76
wrongful birth …. 15.41
wrongful conception …. 8.6, 12.14, 15.28, 15.41
wrongful death see Wrongful death
Dangerous animals see Animals
De facto spouse …. 16.17
Deceit
agents …. 19.77
ambiguous statements …. 19.74
Australian Consumer Law, and …. 1.50, 19.3, 19.92
contributory negligence …. 19.90
damage requirement …. 19.67, 19.82
reasonable foreseeability …. 19.83, 19.85
damages …. 19.84, 19.88
aggravated damages …. 19.89
consequential loss …. 19.84
distress …. 19.88
exemplary damages …. 19.89
loss of profits …. 19.87
measure of damages …. 19.84
physical injury …. 19.88
psychological injury …. 19.88
purchasers of goods …. 19.86
reasonable foreseeability of loss …. 19.85
disclaimers …. 19.79
 elements …. 19.67
historical background …. 19.65, 19.66
intended reliance …. 19.67, 19.78
knowledge of falsity …. 19.67, 19.72, 19.80
agents …. 19.77
ambiguous statements …. 19.74
consciousness of damage …. 19.73
directors …. 19.76
initially true statements …. 19.75
mere carelessness …. 19.73
limitation of actions …. 19.91
misrepresentations of fact …. 19.67, 19.69
silence …. 19.70, 19.71
onus of proof …. 19.68
overview …. 19.2, 19.64
reliance on representation …. 19.80, 19.81
intended reliance …. 19.67, 19.78
Declaratory judgments
advantages …. 15.4
disadvantages …. 15.5
jurisdiction …. 15.4
overview …. 15.3
Declaratory theory of law …. 1.58, 1.59
Defamation see also Injurious falsehood
aggravated damages …. 15.24, 23.115, 23.116, 23.121–23.125
corporations …. 23.125
 distress and hurt …. 23.116, 23.121, 23.122
justification defence, and …. 23.122–23.123
aim of law …. 22.1, 22.11
apologies …. 23.104, 23.122, 23.131–23.133
capable of defamatory meaning …. 22.28, 22.29, 22.30, 22.61
current community standards …. 22.36
intention to defame …. 22.32
objective test …. 22.28, 22.31
ordinary reasonable reader …. 22.31
sectional attitudes of society …. 22.33–22.35
choice of law …. 22.20
court’s considerations …. 22.21
common law …. 22.12
corporations …. 22.83
aggravated damages …. 23.125
damages …. 22.83, 23.125
excluded corporations …. 22.84, 22.85
restricted right to action …. 22.84
subsidiaries …. 22.85
damages …. 23.1, 23.112–23.140
aggravated damages …. 15.24, 23.120–23.125
appeals …. 23.138–23.140
assessment …. 23.117–23.118
corporations …. 22.83, 23.125
distress and hurt …. 23.116, 23.121
economic loss …. 23.124
 exemplary damages …. 15.23, 23.113
jury trials …. 23.138, 23.140
mitigation of damage …. 23.131–23.137
non-economic loss …. 23.115–23.129, 23.134
objectives …. 23.116
partnerships …. 22.87
reparation for harm …. 23.116
reputation …. 23.120–23.121, 23.134
state of defendant’s mind …. 23.114
vindication of reputation …. 23.115, 23.116, 23.117, 23.126–23.129
defamatory matter …. 22.25, 22.26, 22.47
capable of defamatory meaning …. 22.28, 22.29–22.36, 22.61
causing shunning or avoidance …. 22.38, 22.46
disparaging statements …. 22.42, 22.43
hatred, contempt or ridicule …. 22.38, 22.39, 22.40
hypothetical referee …. 22.28, 22.29–22.36
illegal activities …. 22.44
injury in trade or profession …. 22.38, 22.45
injury to feelings …. 22.43
injury to reputation …. 22.37
lowering estimation of others …. 22.38, 22.41–22.44
meaning …. 22.26
objective standard …. 22.28, 22.31
pleading defamatory meaning …. 22.47–22.60
tests to determine …. 22.27, 22.28, 22.31, 22.37
defamatory on the facts …. 22.61
 appeals …. 22.63
determination of questions of fact …. 22.62
jury trials …. 22.62, 22.63
disclaimers …. 22.69
elements …. 22.25
exemplary damages …. 15.23, 23.113
freedom of expression, and …. 23.1
historical background …. 22.2, 22.5
Australia …. 22.5–22.7
jurisdictional disparity …. 22.6
libel …. 22.3, 22.13
slander …. 22.3, 22.13
hypothetical referee …. 22.28, 22.29, 22.30
current community standards …. 22.36
intention to defame …. 22.32
objective test …. 22.28, 22.31
ordinary reasonable reader …. 22.31
sectional attitudes of society …. 22.33–22.35
injunctions …. 1.19, 15.7, 23.1, 23.105
interlocutory injunctions …. 23.106–23.110
permanent injunctions …. 23.111
injurious falsehood, comparison …. 24.101
intention to defame …. 22.32, 22.67
international publications …. 22.22, 22.24
internet …. 22.6, 22.19, 22.23, 22.78, 22.96
internet service providers …. 22.91, 22.92
jurisdiction …. 22.19
appropriate forum …. 22.22, 22.23, 22.24
choice of law …. 22.6, 22.20, 22.21
forum shopping …. 22.19
international publications …. 22.22, 22.24
internet …. 22.6, 22.19, 22.23
pre-national legislation …. 22.6, 22.23
residence …. 22.24
jury trials …. 22.63
damages …. 23.138, 23.140
questions of fact …. 22.62
libel …. 22.3, 22.13, 22.14
broadcasts …. 22.17
durable and transient forms …. 22.17
nature of action …. 22.14
slander, distinction …. 22.13, 22.18, 23.97
statutory abolition …. 22.18
limitation period …. 22.94
misleading or deceptive conduct …. 22.95, 22.99
advantages of actions …. 22.97
information providers …. 22.97, 22.98
supply of goods or services …. 22.98
unincorporated individuals …. 22.96
mitigation of damage …. 23.131–23.137
apologies …. 23.132–23.133
lack of good reputation …. 23.134–23.136
national defamation law …. 22.8, 22.9, 22.18
application …. 22.8
background to introduction …. 22.5–22.7
defences …. 22.93, 23.2
draft Bills …. 22.7
effect of legislation …. 22.9
jurisdiction …. 22.19–22.24
jurisdictional differences …. 22.10
overview …. 22.1, 22.11
parties to actions …. 22.81
corporations …. 22.83–22.85
death of plaintiff …. 22.81, 22.82
partnerships …. 22.86, 22.87
republishers …. 22.88–22.93
pleading defamatory meaning …. 22.47
context of communication …. 22.50, 22.51
implied meaning …. 22.54, 22.55, 22.56
limits of action …. 22.48, 22.49
mode of publication …. 22.50
more than one imputation …. 22.48
natural and ordinary meaning …. 22.50, 22.52, 22.53
strained or forced interpretations …. 22.56
true innuendo …. 22.50, 22.57–22.60
unreasonable interpretations …. 22.56
publication …. 22.25, 22.75
comprehension of matter …. 22.77
 exceptions …. 22.76
internet or email …. 22.78
republication …. 22.79, 22.80
spouses …. 22.76
unauthorised interception …. 22.76
reference to plaintiff …. 22.25, 22.64
business names …. 22.73
disclaimers …. 22.69
express identification …. 22.65–22.69
fictitious names …. 22.67
groups of individuals …. 22.74
indirect identification …. 22.70–22.73
intention to refer to another …. 22.68
invitations to identify …. 22.72
means of identification …. 22.66
more than one person …. 22.68
photographs or pictures …. 22.66
question of fact …. 22.64
relevant test …. 22.64
subsequent publications …. 22.72
remedies …. 23.1, 23.104
damages …. 23.112–23.140
injunctions …. 1.19, 15.7, 23.105–23.111
republication …. 22.79, 22.80
permanent injunctions …. 23.111
republishers …. 22.88
 control of property or means …. 22.89
control over material …. 22.90
fresh cause of action …. 22.88
innocent dissemination …. 22.93
internet service providers …. 22.91, 22.92
slander …. 22.3, 22.13, 22.15
absence of damage …. 23.97
broadcasts …. 22.17
durable and transient forms …. 22.17
exceptional cases …. 22.16
libel, distinction …. 22.13, 22.18, 22.18, 23.97
nature of action …. 22.15
proof of loss …. 22.15
statutory abolition …. 22.18
spouse …. 22.76
survival of causes of action …. 16.52, 22.81
Defamation defences
absolute privilege …. 23.16, 23.17
common law …. 23.17
judicial proceedings …. 23.24–23.31
officers of state …. 23.32
parliamentary proceedings …. 23.16, 23.18–23.23
consent …. 23.100
implied consent …. 23.101
constitutional protection …. 23.71, 23.72
government or political matters …. 23.75
 implied freedom …. 23.72–23.77
loss of defence …. 23.77
malice …. 23.77
reasonable publication …. 23.76
requirements of defence …. 23.74
scope of protection …. 23.73
state constitutions …. 23.72
contextual truth …. 23.11, 23.12
example of defence …. 23.14
nature of defence …. 23.13
pleading …. 23.15
fair comment …. 23.78
coupling of opinion and facts …. 23.83
expressions of opinion …. 23.80–23.83
facts underlying opinion …. 23.82
fair, meaning …. 23.87
malice …. 23.88–23.90
principles of defence …. 23.79
public interest …. 23.84–23.86
public performance …. 23.86
understanding as opinion …. 23.81
honest opinion …. 23.78, 23.91
loss of defence …. 23.92
innocent dissemination …. 22.93, 23.93
availability of defence …. 23.94, 23.95
author or originators …. 23.96
 broadcasters …. 23.96
common law …. 23.94
defamation legislation …. 23.95, 23.96
internet service providers …. 23.94
subordinate distributor, definition …. 23.95
judicial proceedings …. 23.24, 23.27
Australian court, definition …. 23.30
common law …. 23.25–23.28
defamation legislation …. 23.29, 23.30
other legislation …. 23.31
professional disciplinary bodies …. 23.28
reports …. 23.60, 23.61
Royal Commissions …. 23.31
solicitor client communications …. 23.26
justification (truth) …. 23.4, 23.7
accuracy of imputation …. 23.6, 23.8
aggravated damages, and …. 23.122–23.123
common law …. 23.5, 23.6
conviction of an offence …. 23.9
multiple imputations …. 23.10
substantially true …. 23.8
national defamation laws …. 22.93, 23.2
offer to make amends …. 23.102
acceptance of offer …. 23.103
requirements …. 23.102
overview …. 22.11, 23.1, 23.2
parliamentary proceedings …. 23.16, 23.18
common law …. 23.19, 23.20
defamation legislation …. 23.19, 23.21, 23.22
other legislation …. 23.23
parliamentary body, definition …. 23.22
parliamentary reports …. 23.60, 23.62
pleading …. 23.3
contextual truth …. 23.15
multiple imputations …. 23.10
protected reports …. 23.58
common law …. 23.60–23.63
defamation legislation …. 23.64–23.70
fair and accurate reports …. 23.59, 23.64
judicial proceedings …. 23.60, 23.61
parliamentary proceedings …. 23.60, 23.62
public concern proceedings …. 23.65–23.67
public documents …. 23.68–23.70
public interest proceedings …. 23.60, 23.63
relevant principles …. 23.59
social objects …. 23.58
public concern proceedings …. 23.65
definition …. 23.66
inclusions …. 23.66
loss of defence …. 23.67
public documents …. 23.68
advancement of education …. 23.70
 definition …. 23.69
information of the public …. 23.70
loss of defence …. 23.70
qualified privilege …. 23.33, 23.71
application of principles …. 23.36
audience at large …. 23.44
categories of privilege …. 23.37
common interest …. 23.41–23.44
common law …. 23.34–23.46, 23.47
defamation legislation …. 23.47–23.49
defence of reputation or property …. 23.43
gossip or curiosity …. 23.42
identification of occasion of privilege …. 23.36
improper motive …. 23.50, 23.51
legal or moral duty to publish …. 23.36, 23.39
loss of privilege …. 23.49, 23.50–23.57
malice …. 23.49, 23.50, 23.51–23.57
policy behind defence …. 23.33
political communication …. 23.71–23.77
protected reports, and …. 23.58
reciprocity of duty …. 23.34, 23.38, 23.40, 23.41, 23.71, 23.73
response to attack …. 23.45, 23.46
social objects …. 23.58
triviality …. 23.97
court’s considerations …. 23.98
repealed legislation …. 23.99
Defective products
Australian Consumer Law …. 9.120, 9.128, 9.129
remedies …. 9.128
requirements for actions …. 9.128
safety defect, definition …. 9.128
time limit for actions …. 9.130
contract …. 1.41, 9.121
duty of care …. 9.123
included parties …. 9.123
manufacturers …. 9.123, 9.124–9.126
historical background …. 1.41, 9.121
manufacturers …. 9.8, 9.122
Australian Consumer Law …. 9.128–9.130
duty of care …. 9.123, 9.124–9.126
historical background …. 1.41, 9.121
reasonable precautions …. 9.125, 9.126
scope of duty …. 9.124–9.126
warnings of risk …. 9.126
overview …. 9.119, 9.127
pure economic loss …. 9.120
suppliers or retailers …. 9.123, 9.129
Trade Practices Act …. 9.127
Defective structures
duty of care …. 10.79, 10.107
Bryan v Maloney …. 10.108, 10.109
coherency of the law …. 10.115
 control and vulnerability …. 10.110–10.114
indeterminate liability …. 10.118
pursuit of business interests …. 10.117
relationship between parties …. 10.116, 10.117
limitation of actions …. 14.11
building legislation …. 14.11, 14.25
latent defects …. 14.22–14.24
statutory liability …. 10.119
Defence forces
false imprisonment …. 3.72
vicarious liability …. 20.19
Defences
abuse of process …. 18.50
animals …. 26.33
cattle trespass …. 26.27
dogs …. 26.19–26.23
scienter action …. 26.12–26.15
breach of statutory duty …. 18.37–18.40
consent see Consent
contributory negligence see Contributory negligence
defamation see Defamation defences
illegality see Illegality
intellectual disability …. 1.27
justification see Justification defence
medical professionals …. 13.88
advice and warnings …. 13.90–13.92
 Bolam principle …. 11.73, 11.76, 13.90
civil liability legislation …. 13.88, 13.89, 13.91, 13.92
peer professional practice …. 13.88, 13.89
Western Australia …. 11.76, 13.89
negligence …. 13.1, 25.101
civil liability legislation …. 13.1
exclusion of liability clauses …. 13.1, 13.104, 13.105
good Samaritans …. 13.99, 13.100
illegality …. 13.71–13.79
immunity from liability …. 13.80–13.103
inherent risk …. 13.95, 13.96
joint illegal enterprise …. 13.72–13.75, 13.79, 25.101
medical professionals …. 13.88–13.92
obvious risk …. 13.93, 13.94
plaintiff’s illegal activity …. 13.76–13.79
professional practice standards …. 13.81–13.87, 13.91
public safety entities …. 13.101
rescue cases …. 13.97–13.101
volunteers …. 13.102, 13.103
passing off …. 24.28, 24.29
private nuisance …. 25.55, 25.64, 25.101
activities benefiting society …. 25.66
acts of another …. 25.62
consent …. 25.61
contributory negligence …. 25.59, 25.101
easements …. 25.60
 jus tertii, and …. 25.65
necessity …. 25.63
statutory authorisation …. 25.55–25.58, 25.101
professional practice standards …. 13.81, 13.83
advice or warnings …. 13.86, 13.91
civil liability legislation …. 13.82–13.87, 13.91
harm, definition …. 13.86
obvious risks …. 13.87
peer professional opinion …. 13.85
professional, definition …. 13.84
public interest defence …. 7.25
public nuisance …. 25.91, 25.101
rescuers …. 13.97
good Samaritans …. 13.99, 13.100
public safety entities …. 13.101
voluntary assumption of risk …. 13.98
trespass see Trespass defences
voluntary assumption of risk see Volenti non fit injuria
Definitions
assault …. 3.4, 3.19, 3.37, 3.38, 3.39, 3.40, 3.41, 6.32
Australian court …. 23.30
claim …. 16.45
concurrent wrongdoer …. 21.35, 21.36, 21.37, 21.38
conspiracy …. 24.60
dangerous recreational activity …. 13.67
disability …. 14.31, 14.39, 14.41
 excluded corporations …. 22.84
fault …. 6.60
function …. 10.133
good Samaritan …. 13.99
gratuitous attendant care services …. 15.106
gratuitous domestic care …. 15.106
harm …. 12.6, 13.86
health professional …. 13.89
intoxicated …. 13.33
negligence …. 1.6
obvious risk …. 11.63, 13.53
parliamentary body …. 23.22
person in distress …. 11.29
personal injury …. 16.49
proceedings of public concern …. 23.66
professional …. 13.84
public document …. 23.69
public officer …. 18.60
spouse …. 16.17
structured settlement …. 15.37
subordinate distributor …. 23.95
trade or commerce …. 19.99, 19.101
whole person impairment …. 15.114
wrong …. 6.61, 13.6
Dependants see Wrongful death
Detention
 immigration detention …. 9.84
Deterrence and punishment
criminal law …. 1.34, 1.35
evolution of torts law …. 1.31
exemplary damages …. 1.36, 15.19
role in torts …. 1.35, 1.36, 1.37
Detinue
advantages …. 5.57
bailment …. 5.61
continuing cause of action …. 5.58
conversion, distinction …. 5.57
damages …. 5.57, 5.73, 5.91
aggravated damages …. 5.76
damaged or destroyed goods …. 5.75
date of assessment …. 5.91
exemplary damages …. 5.76
foreseeable consequential loss …. 5.94
interest in goods …. 5.74
limitation of actions …. 5.102
loss of profits …. 5.94
loss of use and enjoyment …. 5.95
return of goods …. 5.84, 5.100, 5.101
value of goods …. 5.92, 5.93
defences …. 6.46, 6.64
illegal acts …. 6.67
loss of possession …. 6.46
demand and refusal …. 5.62
absence of demand …. 5.65
conditional demand …. 5.64
inability to comply with demand …. 5.68
inaction …. 5.67
loss of goods …. 5.68
specific demand …. 5.63
unqualified and unreasonable refusal …. 5.66
detention of goods …. 5.58, 5.60
demand and refusal …. 5.62–5.68
intention to retain …. 5.61
wrongful detention …. 5.56, 5.60
elements …. 5.58
fault …. 5.58, 5.69
injunctions …. 5.99–5.101
intention …. 5.61, 5.65, 5.69
limitation of actions …. 5.102, 14.12
commencement of period …. 5.103
more than one wrongful act …. 5.104
mistake …. 6.64
overview …. 5.1, 5.56, 5.91
possession of goods …. 5.5, 5.59
remedies …. 5.71
damages …. 5.73–5.76, 5.84, 5.91–5.95, 5.100, 5.101, 5.102
injunctions …. 5.99–5.101
return of goods …. 5.84, 5.100, 5.101
 self-help …. 5.72
title to sue …. 5.58, 5.59
finders …. 5.59
possession of goods …. 5.59
trespass to chattels, distinction …. 5.57
United Kingdom …. 5.56
Directors
deceit …. 19.76
loss of services …. 17.4
misleading or deceptive conduct …. 19.97
Disabled persons see also Wrongful birth; Wrongful life
limitation of actions …. 14.38, 14.41
standard of care …. 11.11, 11.12
Distress damage feasant …. 6.47
Dogs see Animals
Domestic violence
protection orders …. 3.35, 3.86
Drivers see Motor vehicle drivers
Duress …. 6.12
Dust-related conditions
limitation of actions …. 14.17, 16.49
mesothelioma …. 12.46, 12.47, 12.49
survival of causes of action …. 16.55
Duty of care see also Breach of duty; Standard of care
animals …. 26.29
bailees …. 9.123
categories of relationships …. 9.3
incremental approach …. 10.18, 10.26
Commonwealth …. 9.84
immigration detainees …. 9.84
defective products …. 9.123
included parties …. 9.123
manufacturers …. 9.123, 9.124–9.126
defective structures …. 10.79, 10.107
Bryan v Maloney …. 10.108, 10.109
coherency of the law …. 10.115
control and vulnerability …. 10.110–10.114
indeterminate liability …. 10.118
pursuit of business interests …. 10.117
relationship between parties …. 10.116, 10.117
Donoghue v Stevenson …. 8.10, 8.11
facts of case …. 8.11
employers see Employer’s duty to employees
established duties …. 8.9, 9.3, 9.8, 10.1
public authorities …. 10.121
pure psychiatric injury …. 10.72–10.76
scope of duty …. 9.5
existence of duty …. 8.4, 8.9, 10.2, 10.3, 10.7
general test …. 8.10, 8.11
High Court’s approach …. 8.13
identification of loss …. 10.2
neighbour principle …. 8.11, 8.12, 9.4, 10.5, 10.8
 novel categories …. 10.5–10.36, 12.86
reasonable foreseeability …. 10.8
historical summary …. 8.13, 10.5, 10.6, 10.7
Anns approach …. 10.9–10.11, 10.33
Caparo approach …. 10.15
general test …. 8.10, 8.11
incremental approach …. 10.16–10.21, 10.26
neighbour principle …. 8.11, 8.12, 9.4, 10.5, 10.8
policy considerations …. 10.9, 10.12, 10.33
proximity approach …. 10.11, 10.12–10.14, 10.16
reasonable foreseeability …. 10.8, 10.11, 10.12, 10.15
salient features approach …. 10.22–10.24
unifying principle …. 10.7, 10.12, 10.16, 10.17, 10.21
hospitals …. 9.101
incremental approach …. 10.16, 10.21
categories of duty …. 10.18, 10.26
criticisms …. 10.20
features of approach …. 10.17, 10.18
rejection of unifying principle …. 10.16, 10.17
support for approach …. 10.19
indeterminate liability …. 10.29
negligent misrepresentation …. 19.42
professional services …. 10.106
pure psychiatric harm …. 10.43, 10.67–10.70
relational loss …. 10.84, 10.86, 10.87
landlords …. 9.21, 9.23, 20.76, 20.77
 occupation, meaning …. 9.22
legal policy and public policy …. 10.34–10.37
legal principle and legal policy …. 10.32, 10.33, 10.35, 10.37
manufacturers …. 9.8, 9.123, 9.124
reasonable precautions …. 9.125, 9.126
scope of duty …. 9.124–9.126
warnings of risk …. 9.126
meaning …. 9.2
medical professionals …. 8.9, 9.95, 9.96
advice and warnings …. 9.97, 13.90–13.92
scope of duty …. 9.97
sexually transmitted disease …. 9.100
Sullivan v Moody …. 10.29
third parties …. 9.98–9.100, 10.29
unborn child …. 9.98
wrongful birth …. 9.99
motor vehicle drivers …. 9.8, 9.57, 9.60
child drivers …. 9.57
off-road and rally events …. 9.61
pedestrians …. 9.63
police officers …. 9.57
scope of duty …. 9.62–9.64
taxi drivers …. 9.64
third party insurance …. 9.58, 9.65
unborn child …. 9.59
negligent misrepresentation …. 10.79, 19.1, 19.9, 19.18, 19.42
 assumption of responsibility …. 19.19, 19.21, 19.23–19.26, 19.46,
19.48
characteristics of relationship …. 19.20
continuous duty …. 19.52
current approach …. 19.22
disclaimers …. 19.21, 19.46–19.50
historical background …. 19.10–19.17
indeterminate liability …. 19.42
policy considerations …. 19.10, 19.17, 19.42
reasonable foreseeability …. 19.19
reasonable reliance …. 19.19, 19.21, 19.27–19.45, 19.47, 19.49
recognition of duty …. 19.11, 19.18
scope of duty …. 19.51, 19.52
special relationship …. 19.12, 19.13, 19.14, 19.17, 19.20, 19.21, 19.22
third parties …. 19.42–19.45
neighbour principle …. 8.11, 8.12, 9.4, 10.5, 10.8
non-delegable duty see Non-delegable duty
novel categories …. 8.13, 9.3, 10.2, 10.4, 10.8
adaptability of law …. 10.5, 10.6
Anns approach …. 10.9–10.11, 10.33
Caparo approach …. 10.15
certainty in the law …. 10.5, 10.6
courts’ law-making role …. 10.6
current approach …. 10.25–10.29, 19.22
difficulties in identifying …. 10.7
historical summary …. 10.5–10.24
 identification of loss …. 10.2
incremental approach …. 10.16–10.21, 10.26
legal policy and public policy …. 10.34–10.37
legal principle and legal policy …. 10.32, 10.33, 10.35, 10.37
negligent misrepresentation …. 19.9, 19.22
normative considerations …. 12.86
parliaments’ law-making role …. 10.6
policy considerations …. 10.9, 10.12, 10.32–10.37
proximity approach …. 10.11, 10.12–10.14, 10.16
public authorities …. 10.3, 10.4, 10.6, 10.22, 10.122–10.151
pure economic loss …. 10.2, 10.4, 10.22, 10.77–10.119
pure psychiatric injury …. 10.2, 10.4, 10.30, 10.31, 10.40–10.76
reasonable foreseeability …. 10.8, 10.11, 10.12, 10.15, 10.30, 10.31
salient features approach …. 10.22–10.24, 10.27
scope of duty …. 10.38, 10.39
Sullivan v Moody …. 10.26–10.29
technological developments …. 10.5
types of damage …. 10.2
unifying principle …. 10.7, 10.12, 10.16, 10.17, 10.21
occupiers of premises see Occupiers of premises
overview …. 8.9, 8.10, 9.1, 9.2, 10.1, 11.1, 25.93
parents …. 9.68, 9.77
control of child …. 9.80–9.82
parental immunity …. 9.77, 9.78
‘particular situation’ …. 9.78, 9.79
quality of supervision …. 9.77, 9.78
 scope of duty …. 9.79
third parties …. 9.80–9.82
pedestrians …. 9.63
persons in control of others …. 9.8, 9.67, 9.68
parents …. 9.77–9.82
prison authorities …. 9.83–9.90
school authorities …. 9.69–9.76
police officers …. 10.144
road users …. 9.57
policy considerations …. 10.9, 10.12, 10.33, 10.36
example …. 10.37
legal policy and public policy, distinction …. 10.34
legal principle and legal policy …. 10.32, 10.33, 10.35, 10.37
negligent misrepresentation …. 19.10, 19.17, 19.42
prison authorities …. 9.68, 9.83
at risk prisoners …. 9.88
employees …. 9.89
escaped prisoners …. 9.89
immigration detention …. 9.84
paroled prisoners …. 9.90
reasonable precautions …. 9.87
scope of duty …. 9.85–9.88
third parties …. 9.89, 9.90
professionals …. 9.8, 9.91, 10.97, 10.98
content of duty …. 9.93
examples of relationships …. 9.92
 pure economic loss …. 9.94, 10.79, 10.97–10.106
third parties …. 9.94, 10.79, 10.97–10.106
proximity …. 10.11, 10.12, 10.16
policy considerations …. 10.12
rejection of role …. 10.14
stages of approach …. 10.12, 10.13
public authorities …. 10.3, 10.4, 10.10, 10.120, 10.122
civil liability legislation …. 10.131–10.134, 10.138
coherency of the law …. 10.143–10.145
control and vulnerability …. 10.139–10.142
difficulties of novel duties …. 10.123
duty to act …. 10.127, 10.129
established categories …. 10.121
exercise of power …. 10.122, 10.126, 10.127, 10.128
failure to exercise power …. 10.127, 10.130
policy and operational decisions …. 10.135–10.138
pure economic loss …. 10.124
reasonable foreseeability …. 10.131
relevant factors …. 10.131–10.145
road authorities …. 10.6, 10.146–10.151
salient features approach …. 10.22
statutory exemptions …. 10.125
statutory power …. 10.126–10.130
types of damage …. 10.124
public officials …. 9.123
pure economic loss …. 10.2, 10.4, 10.77, 10.78, 19.1
 categories of claims …. 10.79
defective structures …. 10.79, 10.107–10.118
exceptions to exclusion …. 10.79
exclusionary rule …. 10.77
negligent misrepresentation …. 10.79, 10.98, 19.10, 19.11, 19.18
professional services …. 9.94, 10.79, 10.97–10.106
relational loss …. 10.79, 10.81–10.96
salient features approach …. 10.22
scope of duty …. 10.80
pure psychiatric injury …. 10.2, 10.4, 10.40, 10.42, 10.72
civil liability legislation …. 10.45, 10.46, 10.59, 10.69, 10.70
coherency of law …. 10.71
current approach …. 10.42, 10.43
direct perception …. 10.48, 10.52–10.56
employers …. 9.35, 10.72–10.76
established duties …. 10.72–10.76
indeterminate liability …. 10.43, 10.67–10.70
normal fortitude …. 10.48, 10.49–10.51
reasonable foreseeability …. 10.30, 10.31, 10.41, 10.42, 10.43,
10.47–10.58, 10.60, 10.64, 10.76
recognised psychiatric injury …. 10.44–10.46
relationship between parties …. 10.43, 10.56, 10.61–10.63, 10.68
relevant factors …. 10.43, 10.60–10.71
sudden shock …. 10.48, 10.57, 10.58
vulnerability and control …. 10.43, 10.64–10.66
questions of law …. 8.22
reasonable foreseeability …. 8.7, 8.8, 8.12, 10.8, 10.30, 10.31
Anns approach …. 10.11
Caparo approach …. 10.15
considerations …. 10.31
proximity approach …. 10.12
public authorities …. 10.131
pure economic loss …. 10.90
pure psychiatric injury …. 10.30, 10.31, 10.41, 10.42, 10.43,
10.47–10.58, 10.60, 10.64, 10.76
relational loss …. 10.79, 10.81, 10.86
ascertainable class …. 10.87–10.90
Caltex decision …. 10.82, 10.83, 10.85
indeterminate liability …. 10.84, 10.86, 10.87
insurance …. 10.93
interference with pursuit of business …. 10.94–10.96
interruption of gas supply …. 10.90, 10.93
reasonably foreseeable …. 10.90
vertically integrated operations …. 10.88, 10.89
vulnerability and control …. 10.91–10.93
road authorities …. 10.6, 10.146, 25.84
actual knowledge of risk …. 10.149, 10.150, 10.151
civil liability legislation …. 10.148, 10.149, 10.150, 10.151
‘highway rule’ …. 10.6, 10.146, 10.147, 10.148
public nuisance …. 25.84
reinstatement of rule …. 10.148
salient features approach …. 10.22, 10.23, 10.27
 control …. 10.24
vulnerability …. 10.24
school authorities …. 8.9, 9.68, 9.69, 9.70
non-delegable duty …. 9.75, 20.64, 20.67
outside school hours …. 9.72
school bus drivers …. 9.73
scope of duty …. 9.71–9.74
standard of education …. 9.74
third parties …. 9.76
scope of duty …. 9.4, 9.7
alleged breach, and …. 9.6, 9.7
established relationships …. 9.5
novel categories …. 10.38, 10.39
statutory context …. 10.39
solicitors …. 9.103, 10.99
acting for both parties …. 9.105
advising clients …. 9.108, 9.109
commercial efficacy …. 9.109
legal profession legislation …. 9.118
opposing parties …. 9.104
scope of duty …. 9.107–9.109, 10.99
solicitors conduct rules …. 9.116, 9.117
terms of retainer …. 9.107, 9.108
third parties …. 9.106, 10.99–10.106
warning of risks …. 9.108
Sullivan v Moody …. 10.29
 facts of case …. 10.29
Sullivan v Moody approach …. 10.26, 10.29
factors requiring evaluation …. 10.28
features of approach …. 10.26
indeterminate liability …. 10.29
judicial evaluation …. 10.28
salient features …. 10.27
suppliers or retailers …. 9.123
wrongful life …. 12.12

E
Easements
private nuisance …. 25.60
prescriptive rights …. 25.60
trespass to land …. 4.12
Economic loss see also Loss of services; Pure economic loss
defamation …. 23.130
limitation of actions …. 14.10
commencement of period …. 14.24, 14.26
continuing trespass to land …. 14.13
conversion …. 14.12
latent building defects …. 14.24
‘Egg-shell skull’ rule
assessment of damages …. 15.30
overview …. 12.66, 15.30
same damage requirement …. 12.67, 12.68
 wrongful death …. 16.14
Emergencies see also Medical emergencies; Rescuers
anticipation of negligence …. 11.82
contributory negligence …. 13.14
good Samaritans …. 11.29, 13.99, 13.100
definition …. 13.99
standard of care …. 11.28
civil liability legislation …. 11.29
contributory negligence …. 13.14
Employees see also Vicarious liability of employer; Workers’
compensation
contributory negligence …. 13.15
knowledge of dangerous conduct …. 13.16
loss of employee services …. 17.9
misleading or deceptive conduct …. 19.97
Employers
damages …. 17.1
assessment of damages …. 17.8
contributory negligence …. 17.9
loss of employee services …. 17.7–17.9
loss of employee services …. 17.2, 17.3, 17.6
availability of action …. 17.2
contributory negligence …. 17.9
damages …. 17.7–17.9
death of employee …. 17.5
defence force personnel …. 17.4
 directors …. 17.4
enticement and harbouring …. 17.2
historical background …. 17.2, 17.3
per quod servitium amisit …. 17.2–17.9
Employer’s duty to employees see also Breach of statutory duty;
Vicarious liability of employer
anticipation of carelessness …. 9.45
anticipation of negligence …. 11.81
competent staff …. 9.33, 9.36
contractual duties …. 9.26
safe workplace …. 9.26, 9.29
contributory negligence …. 13.15, 13.16
employee actions …. 1.46, 9.29, 9.30
employment contract …. 9.26
breach of contract …. 9.29
foreseeable risks …. 9.34
historical development …. 9.27, 9.28
employer defences …. 9.28, 18.3
industrial revolution …. 9.27
legislation …. 9.28, 9.48
occupational health and safety …. 9.28, 9.48, 18.3
independent contractors …. 9.31
non-delegable duty …. 9.47, 20.64, 20.65
collateral negligence of contractors …. 20.66
not-for-profit organisations …. 9.34
occupational health and safety …. 9.49
 breach of statutory duty …. 18.3
historical development …. 9.28, 9.48, 18.3
national uniform legislation …. 9.49–9.52
specific employer duties …. 9.50
occupier, employer as …. 9.40
overview …. 9.8, 9.26, 9.27, 20.65
plant and equipment …. 9.33, 9.37
defects in equipment …. 9.42
employer as occupier …. 9.40
maintenance and repair …. 9.41, 9.42
premises of others …. 9.38, 9.39
prison authorities …. 9.89
psychiatric injury …. 9.35, 10.72
bullying and harassment …. 10.76
legitimate business interests …. 10.75
reasonable foreseeability …. 10.76
scope of duty …. 9.35, 10.73, 10.74
safe system of work …. 9.33, 9.43
anticipation of carelessness …. 9.45
anticipation of negligence …. 11.81
appropriate equipment …. 9.43
assault …. 9.44
contractual duty …. 9.26, 9.29
harassment or bullying …. 9.44
historical development …. 9.27, 9.28
independent contractors …. 9.31
 instructions …. 9.43
premises of others …. 9.46
safe system, meaning …. 9.43
supervision …. 9.43
warnings …. 9.43
scope of duty …. 9.27, 9.32, 9.33
competent staff …. 9.33, 9.36
foreseeable risks …. 9.34
plant and equipment …. 9.33, 9.37–9.42
psychiatric injury …. 9.35, 10.73, 10.74
safe system of work …. 9.33, 9.43–9.67
standard of care …. 11.79
anticipation of negligence …. 11.81
contributory negligence …. 13.15, 13.16
voluntary assumption of risk …. 9.28, 13.49
Encroachment …. 4.70
Enticement
domestic service by child …. 17.26
employee services …. 17.2
husband’s action …. 17.13, 17.15
abolition …. 17.16
Equitable remedies
account of profits …. 15.6
court’s discretion …. 15.2
declaratory judgments …. 15.3
advantages …. 15.4
 disadvantages …. 15.5
jurisdiction …. 15.4
injunctions see Injunctions
overview …. 1.19, 15.2
private nuisance …. 25.71
Evolution of torts law
actions on the case …. 2.1, 2.5, 2.21
Australian position …. 2.7, 2.8, 2.9, 2.10, 2.22
indirect interference …. 2.2, 2.7
intention …. 2.3, 2.6, 2.10, 2.22
United Kingdom …. 2.6
declaratory theory of law …. 1.58
extent of adherence …. 1.59
deterrence and punishment …. 1.31
High Court’s approach …. 1.58, 1.59, 1.62
judicial activism …. 1.60, 1.61
policy considerations …. 1.59, 1.60, 1.61, 1.62
initial actions …. 1.38, 2.1
insurance, and …. 1.43, 1.51, 1.52, 1.55
courts’ approach …. 1.56, 1.57
indemnity insurance …. 1.52, 1.53
third party insurance …. 1.52, 1.54, 1.57
Ipp Report …. 1.51
judicial activism …. 1.60, 1.61
negligence …. 1.39, 1.40, 1.41, 1.43, 25.94
contractual relationships …. 1.40, 1.41
 Donoghue v Stevenson …. 1.42
employment relationship …. 1.43
insurance, and …. 1.43, 1.51, 1.52
neighbour principle …. 1.42
pure economic loss …. 1.43
no-fault compensation …. 1.45
criminal injuries compensation …. 1.48
motor vehicle accidents …. 1.47
workers’ compensation …. 1.46
overview …. 1.1, 1.38
statutory impacts …. 1.44
civil liability legislation …. 1.51
consumer protection …. 1.50
contributory negligence …. 1.49
no-fault compensation …. 1.45–1.48
strict legalism doctrine …. 1.58
extent of adherence …. 1.59
trespass actions …. 1.39, 2.1, 2.5, 2.12, 4.1
Australian position …. 2.7, 2.8, 2.9, 2.10, 2.22
direct interference …. 2.2, 2.7
fault …. 2.4, 2.6, 2.8
highway/non-highway distinction …. 2.3, 2.4, 2.6
intention …. 2.3, 2.5, 2.6, 2.10, 2.22
United Kingdom …. 2.6
Ex turpi causa oritur non actio …. 6.67
Execution of process
 defence to trespass …. 6.57, 6.58
Exemplary damages
assessment …. 15.20
conspiracy …. 24.74
conversion …. 5.76
deceit …. 19.89
defamation …. 15.23, 23.113
deterrence role …. 1.36, 15.19
detinue …. 5.76
industrial accident cases …. 15.22
intimidation …. 24.86
joint tortfeasors …. 15.20, 21.7
malicious prosecution …. 7.19
misleading or deceptive conduct …. 19.114
motor vehicle accidents …. 15.22
negligence …. 15.21
overview …. 1.17, 1.36, 3.83, 15.19
passing off …. 24.32
personal injuries …. 15.21
punitive function …. 1.36, 15.19
purposes …. 1.36, 15.19, 15.20
restriction of right …. 15.22
survival of causes of action …. 16.56
trespass to chattels …. 5.76
trespass to land …. 4.61, 4.62
trespass to person …. 3.79, 3.83, 3.84
F
Factual causation see Causation
False imprisonment
Aboriginal children …. 3.51
arrest …. 3.64
arbitrary arrest …. 3.64
civil arrest …. 3.69, 3.70
police arrest …. 3.65–3.68
assault, and …. 3.57
assertion of authority …. 3.58
civil arrest …. 3.64, 3.69
onus of proof …. 3.70
statutory modification …. 3.70
defence forces …. 3.72
defences see Trespass defences
direct interference …. 3.50, 3.51
elements …. 3.50
escape attempts …. 3.59
evolution of law …. 1.39
fault …. 3.50, 3.60
immigration detention …. 3.74
intention …. 3.60
knowledge of restraint …. 3.48, 3.49
lawful justification …. 3.61, 3.62
defence forces …. 3.72
onus of proof …. 3.61, 3.70
 prison authorities …. 3.71, 3.72
power of arrest …. 3.64–3.70
right to release governed by contract …. 3.63
statutory authority to detain …. 3.73, 3.74
limitation of actions …. 3.88
malicious prosecution, distinction …. 7.9, 7.10
mistake …. 6.64
no reasonable means of escape …. 3.54, 3.55
overview …. 3.2, 3.46, 7.9
period of imprisonment …. 3.47
police arrest …. 3.64, 3.65
delay in charging …. 3.65
warrant arrests …. 3.67
warrant without authority …. 3.68
without warrant …. 3.65, 3.66
police officers …. 3.51
assertion of authority …. 3.58
prison authorities …. 3.71, 6.64
defence forces …. 3.72
remedies …. 3.75, 3.87
damages …. 3.75–3.84
injunctions …. 3.85
limitation of actions …. 3.88
protection orders …. 3.86
restraint in all directions …. 3.50, 3.52
assertion of authority …. 3.58
 comprehensive limitation …. 3.53
escape attempts …. 3.59
mere obstructions …. 3.53
no reasonable means of escape …. 3.54, 3.55
physical restraint …. 3.56, 3.57
threat of imminent harm …. 3.57
statutory authority to detain …. 3.73
immigration detention …. 3.74
submission of plaintiff …. 3.56, 3.57
threat of imminent harm …. 3.57
vicarious liability …. 20.88
voluntary entry …. 3.62, 3.63
Fault see also Intention
assault …. 3.31
battery …. 3.3, 3.16–3.18, 6.60
contributory negligence …. 6.60
conversion …. 5.29, 5.55
definition …. 6.60
detinue …. 5.58, 5.69
false imprisonment …. 3.50, 3.60
negligence …. 2.18, 20.1
overview …. 1.6, 20.1
private nuisance …. 24.38, 24.39
trespass …. 2.4, 2.6, 2.8, 2.12, 2.15, 2.18, 6.1, 20.1
trespass to chattels …. 5.6, 5.24
awareness of infringement …. 5.25
 mistaken belief …. 5.26
trespass to land …. 4.3, 4.40
vicarious liability, and …. 20.2
Fraud
consent …. 6.10
medical treatment …. 6.10, 6.11, 6.17
limitation of actions …. 14.46
fraud, meaning …. 14.51
fraudulent misrepresentation …. 14.46
jurisdictional differences …. 14.47–14.50
onus of proof …. 14.52
suspension of period …. 14.46–14.52
vicarious liability of employer …. 20.37
Fraudulent misrepresentation see also Deceit
conversion …. 19.66
innominate actions …. 19.66
limitation of actions …. 14.46
mode of committing a tort …. 19.66

G
Good Samaritans
definition …. 13.99
emergencies …. 11.29, 13.99
immunity from liability …. 13.99, 13.100

H
Harbouring
domestic service by child …. 17.26
employee services …. 17.2
husband’s actions …. 17.14, 17.15
abolition …. 17.16
Harassment
employer’s duty of care …. 9.44, 10.76
Highway authorities see Road authorities
History of torts law see Evolution of torts law
Hospital expenses
cost of treatment …. 15.65
future expenses …. 15.59, 15.63, 15.141
evidence of future needs …. 15.67
indemnity principle …. 15.84, 15.141
institutional or home care …. 15.66
overview …. 15.61
past expenses …. 15.56, 15.62
reasonable and necessary …. 15.64–15.67
cost of treatment …. 15.65
institutional or home care …. 15.66
Hospitals see also Medical professionals
duty of care …. 9.101
non-delegable duty …. 9.102, 20.64, 20.68, 20.69
outpatients …. 20.68
specialists treating private patients …. 20.69
vicarious liability …. 20.18
I
Illegality
breach of statutory duty …. 18.39
civil liability legislation …. 13.77, 13.79
indictable offences …. 13.78
reduction in damages …. 13.78
defamation …. 22.44
joint illegal enterprise …. 13.1, 13.72, 13.79, 25.101
connection with conduct …. 13.72, 13.74
minor infringements …. 13.73
proximity …. 13.74
standard of care …. 13.73
sufficiently serious …. 13.73
withdrawal from illegal purpose …. 13.75
negligence defence …. 13.1, 13.71
joint illegal enterprise …. 13.72–13.75, 13.79, 25.101
plaintiff’s illegal activity …. 13.76–13.79
non-recognition of loss …. 12.9
nuisance …. 25.101
plaintiff’s illegal activity …. 13.76, 13.79
civil liability legislation …. 13.77–13.79
indictable offences …. 13.78
reduction in damages …. 13.78
Immigration detainees
Commonwealth’s duty of care …. 9.84
Indemnities
 overview …. 20.86
vicarious liability …. 20.85, 20.86, 21.27
Lister v Romford Ice …. 20.86, 20.87, 21.25, 21.27
statutory modification …. 20.88, 21.26
Independent contractors
agent or contractor …. 20.56
employee or contractor …. 20.8, 20.9, 20.17
control test …. 20.11, 20.13, 20.24
hospital staff …. 20.18
multi-facet test …. 20.14–20.17
organisation test …. 20.12, 20.13
relevant factors …. 20.16, 20.17
terms describing relationship …. 20.9
tests to determine …. 20.10–20.17
employer’s duty of care …. 9.31
Inevitable accident
non-highway trespass …. 6.3
overview …. 6.2, 6.4
United Kingdom …. 6.2
Infringement of rights
absolute rights …. 1.13, 1.14
legally recognisable rights …. 1.11
overview …. 1.10, 1.11
pure economic loss …. 1.10
qualified rights …. 1.13, 1.14
proof of harm …. 1.15
 recognition of new rights …. 1.12
types of rights …. 1.13
Injunctions
assault …. 3.85
conversion …. 5.98
defamation …. 1.19, 15.7, 23.1, 23.105
interlocutory injunctions …. 23.106–23.110
permanent injunctions …. 23.111
detinue …. 5.99–5.101
discretionary nature …. 15.8
injurious falsehood …. 24.99
interference with contractual relations …. 24.59
interlocutory injunctions …. 15.11
defamation …. 23.106–23.110
injurious falsehood …. 24.99
private nuisance …. 25.70
mandatory injunctions …. 15.7, 15.10
private nuisance …. 25.70
nuisance …. 15.7
overview …. 1.19, 5.96, 15.7
passing off …. 24.33
private nuisance …. 24.28, 25.69, 25.70, 25.75, 25.102
prohibitory injunctions …. 15.7, 15.9
quia timet injunctions …. 15.9
passing off …. 24.33
private nuisance …. 25.70, 25.71
 public nuisance …. 25.102
trespass to chattels …. 5.97, 15.7
trespass to land …. 1.19, 4.65, 4.66, 15.7
continuing trespass …. 4.67
past and complete trespass …. 4.68
trespass to person …. 3.85, 15.11
Injurious falsehood see also Defamation
damage requirement …. 22.97, 24.89, 24.96
reasonable foreseeability …. 24.97
special damage …. 24.97
damages …. 24.98
defamation, comparison …. 24.101
development of tort …. 24.88
elements …. 22.97, 24.89
false statements …. 22.97, 22.98, 24.89, 24.90
injunctions …. 24.99
malice …. 22.97, 24.89, 24.92
establishing …. 24.93
evidence of ill-will …. 24.94
exaggerated statements …. 24.95
misleading or deceptive conduct …. 22.95, 24.100
internet …. 22.96
overview …. 22.4, 24.87, 24.101
passing off, distinction …. 24.6
publication …. 22.97, 24.89, 24.91
remedies …. 24.98
 injunctions …. 24.99
Innocent misrepresentation …. 19.2
Innominate actions
fraudulent misrepresentation …. 19.66
High Court decisions …. 2.26, 2.27
malicious prosecution see Malicious prosecution
overview …. 2.21, 2.25, 2.28
privacy see Privacy
psychiatric injury see Intentional infliction of psychiatric injury
reversionary owners …. 5.70
Insanity
defence to trespass …. 6.65
Insurance
courts’ approach …. 1.56, 1.57
evolution of torts law …. 1.51, 1.52, 1.55
courts’ approach …. 1.56, 1.57
indemnity insurance …. 1.52, 1.53
negligence, and …. 1.43, 1.51, 1.52
pure economic loss, and …. 1.57
third party insurance …. 1.52, 1.54, 1.57, 9.58, 9.65
Intellectually disabled persons
capacity to sue and be sued …. 1.26, 1.27
defences …. 1.27
Intention
actions on the case …. 2.3, 2.6, 2.10, 2.21, 2.22, 2.24, 2.28, 7.10
assault …. 3.19, 3.31, 3.32
 battery …. 3.16, 3.17, 3.18
conspiracy …. 24.61, 24.64, 24.66
agreement of purpose …. 24.67
breach of contract …. 24.69
lawful act …. 24.64, 24.70
plaintiff as target …. 24.65
purpose of agreement …. 24.67, 24.70
statutory breach …. 24.69
unlawful act …. 24.64, 24.68, 24.69
conversion …. 5.40, 5.48, 5.55
criminal law …. 1.33
detinue …. 5.61, 5.65, 5.69
false imprisonment …. 3.60
interference with contractual relations …. 24.40, 24.46, 24.47
promotion of own interests …. 24.49
reckless or indifferent conduct …. 24.48
intimidation …. 24.76, 24.81
involuntariness, distinction …. 2.17
minors …. 1.23
negligence …. 2.22, 2.25, 3.18
overview …. 1.6, 1.33
trespass …. 2.3, 2.5, 2.6, 2.10, 2.16, 2.22, 2.24, 2.28, 7.10
involuntariness …. 2.17
trespass to chattels …. 5.24
trespass to land …. 4.40
Intentional damage to a person see also Intentional infliction of
 psychiatric injury; Malicious prosecution; Privacy
overview …. 7.1
possible actions …. 7.1
Intentional infliction of psychiatric injury
actual damage …. 7.5
actual intention …. 7.5
child sexual abuse …. 14.43
civil liability legislation …. 7.8
foreseeability of harm …. 7.4, 7.6
mere fright …. 7.4
overview …. 2.25, 7.2, 7.7
reckless indifference …. 7.5
requirements …. 7.4, 7.5
scope of principle …. 7.3
Wilkinson v Downtown …. 7.2, 7.6, 7.7
Interference with business interests
conspiracy see Conspiracy
emergence of single tort …. 24.2, 24.5
High Court’s position …. 24.3
lower courts …. 24.4, 24.5
United Kingdom …. 24.2
injurious falsehood see Injurious falsehood
intimidation see Intimidation
overview …. 24.1
passing off see Passing off
Interference with contractual relations
breach of contract …. 24.54, 24.55
damage requirement …. 24.40, 24.55
damages …. 24.58
defences …. 24.56
justification …. 24.56, 24.57
development of tort …. 24.39
elements …. 24.40
injunctions …. 24.59
intention …. 24.40, 24.46, 24.47
promotion of own interests …. 24.49
reckless or indifferent conduct …. 24.48
justification defence …. 24.56, 24.57
criteria …. 24.57
knowledge of contract …. 24.40, 24.43
common sense …. 24.44
corporations …. 24.45
terms of contract …. 24.44
overview …. 24.1, 24.38
performance of contract …. 24.40, 24.50, 24.54
advice leading to breach …. 24.52
direct interference …. 24.51, 24.52
indirect interference …. 24.53
pre-contractual negotiations …. 24.42, 24.54
remedies …. 24.58
injunctions …. 24.59
valid existing contract …. 24.40, 24.41
 voidable contracts …. 24.41
wrongful or unlawful interference …. 24.40, 24.54
Internet
defamation …. 22.6, 22.19, 22.23, 22.78
misleading or deceptive conduct …. 22.96
Internet service providers
defamation …. 22.91, 22.92
innocent dissemination …. 23.94
Intimidation
aggravated damages …. 24.86
compliance with threat …. 24.76, 24.80
damage requirement …. 24.82
damages …. 24.84–24.86
elements …. 24.75, 24.76
exemplary damages …. 24.86
industrial relations legislation, and …. 24.75
intention …. 24.76, 24.81
justification defence …. 24.83
overview …. 24.1, 24.75
threat of unlawful act …. 24.76, 24.77
improper exercise of power …. 24.79
third parties …. 24.78
unlawful act …. 24.79
Intoxicated persons
contributory negligence …. 13.12, 13.13, 13.31, 13.32
apportionment of liability …. 13.40, 13.41
 civil liability legislation …. 13.12, 13.33–13.41, 13.44, 13.45
defendant intoxicated …. 13.38, 13.39
impairment of capacity …. 13.36
intoxicated, definition …. 13.33
motor vehicle accidents …. 13.12, 13.42–13.45
plaintiff intoxicated …. 13.34–13.37
rebuttal of presumption …. 13.35, 13.39
statutory presumptions …. 13.12, 13.31–13.45
definitions …. 13.33
occupier’s duty …. 1.37, 9.15, 9.16, 9.25, 10.37
standard of care …. 11.26
civil liability legislation …. 11.27
contributory negligence …. 13.12, 13.13
intoxicated plaintiff …. 11.33
volenti non fit injuria …. 13.61
defendant intoxicated …. 13.63
onus of proof …. 13.62
plaintiff intoxicated …. 13.62
Invasion of privacy see Privacy
Involuntariness
intention, distinction …. 2.17
trespass …. 2.17
Ipp Report
breach of duty …. 8.15, 8.16, 11.38
causation …. 8.20, 12.3
onus of proof …. 12.55
 scope of liability …. 12.58
contributory negligence …. 13.9
damage requirement …. 12.3
scope of liability …. 12.58
limitation of actions …. 14.9, 14.29
child abuse …. 14.44
children …. 14.32, 14.35
non-delegable duty …. 20.84
overview …. 1.51, 15.53
personal injury damages …. 15.112
public authorities …. 18.33
solidary liability …. 21.32

J
Joint illegal enterprise
connection with conduct …. 13.72, 13.74
establishing …. 13.72
minor infringements …. 13.73
negligence defence …. 13.1, 13.72–13.75, 25.101
nuisance …. 25.101
overview …. 13.72, 13.79
proximity …. 13.74
standard of care …. 13.73
sufficiently serious …. 13.73
withdrawal from illegal purpose …. 13.75
Joint tenants
 conversion …. 5.36
trespass to land …. 4.10
possession of land …. 4.11
Joint tortfeasors see Concurrent tortfeasors
Judicial activism …. 1.60, 1.61
Judicial acts
defence to trespass …. 6.55, 6.56
Jurisdiction
declaratory judgments …. 15.4
defamation …. 22.19
appropriate forum …. 22.22, 22.23, 22.24
choice of law …. 22.20, 22.21
forum shopping …. 22.6, 22.19
international publications …. 22.22, 22.24
internet …. 22.6, 22.19, 22.23
pre-national legislation …. 22.6, 22.23
residence …. 22.24
Jury trials
defamation …. 22.62, 22.63
appeals …. 23.138-23.140
damages …. 23.138, 23.140
negligence …. 11.88-11.96
appeals …. 11.93-11.94
directions to jury …. 11.91
limit on availability …. 8.26, 11.92
overview …. 11.88
 personal injury damages …. 15.152
questions of fact …. 8.24, 11.88, 22.62
questions of law …. 8.24, 11.88
withholding case from jury …. 11.90
Jus tertii …. 4.5, 6.45, 25.65
Justification defence
conspiracy …. 24.72
defamation …. 23.4, 23.7
accuracy of imputation …. 23.6, 23.8
aggravated damages …. 23.122–23.123
common law …. 23.5, 23.6, 23.8
conviction of an offence …. 23.9
multiple imputations …. 23.10
substantially true …. 23.8
interference with contractual relations …. 24.56, 24.57
intimidation …. 24.83

L
Land see also Trespass to land
indirect interference …. 1.14
Landlord and tenant
contractual relationship …. 9.21
duty of care …. 9.21, 9.23, 20.76, 20.77
occupation, meaning …. 9.22
non-delegable duty …. 20.76
inherent risk of damage …. 20.76, 20.77
 private nuisance …. 25.12
control of activities …. 25.13
failure to repair …. 25.14
title to sue …. 25.6, 25.7
public nuisance …. 25.83
trespass to land …. 4.6
trespass by relation …. 4.7, 4.8
Legal formalism …. 1.58, 1.59
Legal profession see also Barristers; Solicitors
regulation of conduct …. 9.118
Lessors see Landlord and tenant
Libel see Defamation
Limitation of actions
actions on the case …. 14.15
applicable time period …. 14.6
child abuse …. 14.18, 14.28, 14.43, 14.45
Ipp report …. 14.44
children …. 14.32
Ipp report …. 14.32, 14.35
notice requirements …. 14.36, 14.37
parent or guardian …. 14.33, 14.36, 14.37
Western Australia …. 14.34
commencement of period …. 14.6, 14.14
conversion …. 5.103, 14.12
date of action accruing …. 14.14, 14.15, 14.17, 14.18, 14.21–14.25,
14.26
 date of discoverability …. 14.14, 14.19, 14.20
economic loss …. 14.24, 14.26
personal injuries …. 14.16–14.20
property damage …. 14.21–14.25
common law …. 14.1
contribution between tortfeasors …. 14.64–14.67
conversion …. 5.102, 14.12
commencement of period …. 5.103, 14.12
more than one wrongful act …. 5.104
deceit …. 19.91
defamation …. 22.94
defective buildings …. 14.11
building legislation …. 14.11, 14.25
latent defects …. 14.22–14.24
detinue …. 5.102, 14.12
commencement of period …. 5.103
more than one wrongful act …. 5.104
economic loss …. 14.10
commencement of period …. 14.24, 14.26
continuing trespass to land …. 14.13
conversion …. 14.12
latent building defects …. 14.24
effect on proceedings …. 14.3, 14.7
extension of period …. 14.4, 14.6, 14.27, 14.53
just and reasonable …. 14.56
knowledge of plaintiff …. 14.62
 material fact of decisive character …. 14.58–14.60
personal injuries …. 14.54–14.62
prejudice to fair trial …. 14.61
property damage …. 14.63
wrongful death …. 16.50
fraud or improper conduct …. 14.46
fraud, meaning …. 14.51
jurisdictional differences …. 14.47–14.50
onus of proof …. 14.52
suspension of period …. 14.46–14.52
fraudulent misrepresentation …. 14.46
Ipp report …. 14.9, 14.29
child abuse …. 14.44
children …. 14.32, 14.35
legal disability …. 14.28, 14.29, 14.30
children …. 14.32–14.37
disability, definition …. 14.31
mental or physical disability …. 14.38–14.41
prisoners …. 14.42
mental or physical disability …. 14.38
disability, definition …. 14.39, 14.41
inability to manage affairs …. 14.40
physical disability …. 14.41
under a disability …. 14.40
misleading or deceptive conduct …. 19.115, 19.116
negligent misrepresentation …. 19.62
 contracts …. 19.63
other statutes …. 14.5
building legislation …. 14.11, 14.25
overview …. 14.1, 14.6
period of limitation …. 14.7
contribution between tortfeasors …. 14.64–14.67
form of damage …. 14.7
personal injuries …. 14.8, 14.9
property damage …. 14.10–14.13
personal injuries …. 14.8
awareness of right to claim …. 14.17, 14.18
child sexual abuse …. 14.18
commencement of period …. 14.16–14.20
date of action accruing …. 14.17, 14.18
date of discoverability …. 14.19, 14.20
extension of period …. 14.54–14.62
Ipp report …. 14.9
period of limitation …. 14.8, 14.9
procedural notice requirements …. 14.9
wrongful death …. 16.49
private nuisance …. 25.76
property damage …. 14.10
categorisation of damage …. 14.24
commencement of period …. 14.21–14.25
continuing trespass to land …. 14.13
conversion …. 14.12
 defective buildings …. 14.11, 14.22–14.25
extension of period …. 14.63
latent defects …. 14.21, 14.22–14.24
period of limitation …. 14.10–14.13
rationale …. 14.2
statutes of limitations …. 14.1, 14.4
effect on proceedings …. 14.3
lack of conformity …. 14.4
other statutes, and …. 14.5
public policy …. 14.2
survival of cause of actions …. 16.58
suspension of period …. 14.6, 14.27, 14.28
child abuse …. 14.28, 14.43–14.45
children …. 14.32–14.37
fraud or improper conduct …. 14.46–14.52
legal disability …. 14.28, 14.29–14.42
mental or physical disability …. 14.38–14.41
prisoners …. 14.42
trespass …. 14.15
trespass to chattels …. 5.102
commencement of period …. 5.103
trespass to land …. 4.71, 14.13
trespass to person …. 3.88
child sexual abuse …. 14.43
wrongful death …. 16.48, 16.50
dust-related conditions …. 16.49
 survival of cause of actions …. 16.58
Loss of chance
medical negligence …. 12.18–12.20
Loss of consortium and servitium
damages …. 17.10, 17.17–17.19
contributory negligence …. 17.20
wife’s position …. 17.11
wrongful death …. 16.31
husband’s actions …. 17.10
abolition of actions …. 17.12, 17.16
contributory negligence …. 17.20
damages …. 17.10, 17.17–17.20
enticement …. 17.13, 17.15, 17.16
harbouring of wife …. 17.14, 17.15, 17.16
seduction …. 17.13, 17.15, 17.16
wife’s position …. 17.11, 17.13
wrongful death …. 16.31
Loss of services
domestic service by child …. 17.21
contributory negligence …. 17.22
enticement and harbouring …. 17.26
seduction of daughter …. 17.24, 17.25
statutory modifications …. 17.23, 17.25
employee services …. 17.2, 17.3, 17.6
assessment of damages …. 17.8
availability of action …. 17.2
 contributory negligence …. 17.9
damages …. 17.7–17.9
death of employee …. 17.5
defence force personnel …. 17.4
directors …. 17.4
enticement and harbouring …. 17.2
historical background …. 17.2, 17.3
per quod servitium amisit …. 17.2–17.9
wrongful death …. 16.28, 16.29

M
Malice
fair comment defence …. 23.88, 23.89
vicarious liability …. 23.90
injurious falsehood …. 24.89, 24.92–24.95
qualified privilege …. 23.50, 23.51, 23.52
defamation legislation …. 23.49, 23.51
lack of honest belief …. 23.53, 23.54, 23.55
political communication …. 23.77
vicarious liability …. 23.56, 23.57
Malicious prosecution
absence of reasonable and probable cause …. 7.17
abuse of process, distinction …. 18.47
damage requirement …. 7.11, 7.18
costs …. 7.18
damages …. 7.19
 elements …. 1.9, 7.11
false imprisonment, distinction …. 7.9, 7.10
improper motive …. 7.16
initiation of prosecution …. 7.12, 7.13
information leading to prosecution, distinction …. 7.13
types of prosecutions …. 7.14
malice requirement …. 1.9, 7.16
onus of proof …. 7.11
overview …. 7.9, 7.10
remedies …. 7.19
termination in plaintiff’s favour …. 7.15
types of prosecutions …. 7.14
vicarious liability …. 20.88
Manufacturers
Australian Consumer Law …. 9.128, 9.129
remedies …. 9.128
requirements for actions …. 9.128
safety defect, definition …. 9.128
time limit for actions …. 9.130
dangerous products …. 9.121, 9.122
defective products …. 9.8, 9.122
Australian Consumer Law …. 9.128–9.130
duty of care …. 9.123, 9.124–9.126
historical background …. 1.41, 9.121
duty of care …. 9.123, 9.124
reasonable precautions …. 9.125, 9.126
 scope of duty …. 9.124–9.126
warnings of risk …. 9.126
standard of care …. 9.122
Medical emergencies
consent to treatment …. 6.22
guardianship legislation …. 6.24
minors …. 6.23
statutory provisions …. 6.23
school authorities …. 11.29
standard of care …. 11.29
person in distress, definition …. 11.29
Medical expenses
cost of treatment …. 15.65
future expenses …. 15.59, 15.63, 15.141
evidence of future needs …. 15.67
institutional or home care …. 15.66
overview …. 15.61
past expenses …. 15.56, 15.62
reasonable and necessary …. 15.64–15.67
cost of treatment …. 15.65
institutional or home care …. 15.66
Medical professionals
advice and warnings …. 9.97, 11.74, 11.77, 13.90
civil liability legislation …. 11.74–11.76, 13.91, 13.92
proactive duty …. 11.75
reactive duty …. 11.75
 Rogers v Whitaker …. 11.77
scope of duty …. 9.97, 11.77
Western Australia …. 11.76
defences …. 13.88
advice and warnings …. 13.90–13.92
Bolam principle …. 11.73, 11.76, 13.90
civil liability legislation …. 13.88, 13.89, 13.91, 13.92
peer professional practice …. 13.88, 13.89
Western Australia …. 11.76, 13.89
duty of care …. 8.9, 9.95, 9.96
advice and warnings …. 9.97, 13.90–13.92
scope of duty …. 9.97
sexually transmitted disease …. 9.100
Sullivan v Moody …. 10.29
third parties …. 9.98–9.100, 10.29
unborn child …. 9.98
wrongful birth …. 9.99
meaning …. 9.96
overview …. 9.96
sexual abuse examinations …. 10.29
standard of care …. 11.15, 11.74
advice and warnings …. 11.74–11.77
civil liability legislation …. 11.74–11.76
inexperience …. 11.21
knowledge at time …. 11.17
Medical treatment see also Wrongful birth; Wrongful
conception; Wrongful life
advance health directives …. 6.26
causation …. 12.21, 12.26
intervening acts …. 12.79, 12.80
legally significant cause …. 12.88, 12.89
consent …. 6.14
capacity to consent …. 6.13, 6.18–6.21, 6.24
emergency treatment …. 6.22–6.24
fraud …. 6.10, 6.11, 6.17
guardianship legislation …. 6.18, 6.24
minors …. 6.13, 6.19–6.21, 6.23
requirements for validity …. 6.15
right to refuse treatment …. 6.25, 6.26
scope of consent …. 6.16
voluntariness …. 6.10, 6.11, 6.17
emergency treatment …. 6.22
guardianship legislation …. 6.24
minors …. 6.23
statutory provisions …. 6.23
loss of chance …. 12.18–12.20
minors’ consent …. 6.13, 6.19
cosmetic surgery …. 6.21
emergency treatment …. 6.23
parens patriae jurisdiction …. 6.20
necessity defence …. 6.44, 6.50
right to refuse treatment …. 6.25, 6.26
 statutory authority to compel …. 6.50
force feeding …. 6.50
trespass to person …. 6.14
necessity defence …. 6.44
Mental harm see Intentional infliction of psychiatric harm; Pure
psychiatric injury
Mental illness
defence to trespass …. 6.65
involuntarism …. 6.66
limitation of actions …. 14.38
disability, definition …. 14.39, 14.41
inability to manage affairs …. 14.40
under a disability …. 14.40
Mental impairment
standard of care …. 11.11, 11.13
Mesne profits …. 4.69
Mesothelioma
causation …. 12.46, 12.47, 12.49
Mining rights
conversion …. 4.18
trespass to land …. 4.18
Minors see also Parents; School authorities
breach of statutory duty …. 18.26, 18.27
capacity to sue and be sued …. 1.21, 1.22
guardian ad litem …. 1.22
intention …. 1.23
 liability for torts …. 1.23
next friend …. 1.22
parent and child …. 1.24, 1.25
child abuse …. 14.43
Ipp report …. 14.44
limitation of actions …. 14.18, 14.28, 14.43–14.45
range of actions …. 14.43
vicarious liability of employers …. 20.40–20.47
consent to medical treatment …. 6.13, 6.19
cosmetic surgery …. 6.21
emergency treatment …. 6.23
parens patriae jurisdiction …. 6.20
contributory negligence …. 13.11
dependants, as …. 16.18
domestic service for parents …. 17.21
contributory negligence …. 17.22
enticement and harbouring …. 17.26
seduction of daughter …. 17.24, 17.25
statutory modifications …. 17.23, 17.25
duty of care …. 9.57
education requirement …. 9.69
limitation of actions …. 14.32
child abuse …. 14.18, 14.28, 14.43–14.45
Ipp report …. 14.32, 14.35
notice requirements …. 14.36, 14.37
parent or guardian …. 14.33, 14.36, 14.37
 suspension of period …. 14.32–14.37
Western Australia …. 14.34
overview …. 1.21, 6.19
parental right to discipline …. 6.53
personal injury damages …. 15.73
standard of care …. 11.9
adult activities …. 11.10
child plaintiff …. 11.31, 11.32
contributory negligence …. 13.11
wrongful death …. 16.21
dependants …. 16.18
Misfeasance
nonfeasance, distinction …. 1.4, 9.67
overview …. 1.4, 1.5
private nuisance …. 24.34, 24.36
fault …. 24.38, 24.39
Rylands v Fletcher …. 24.38, 24.39
strict liability …. 24.36, 24.38, 24.39
Misfeasance in public office
damage requirement …. 18.53, 18.62
foreseeability of harm …. 18.63
elements …. 18.53
intention of defendant …. 18.52
intention to cause harm …. 1.6, 18.56
invalid or unauthorised act …. 18.54, 18.55
malice …. 18.56–18.59
 malice …. 18.56
establishing malice …. 18.56–18.59
intention to cause harm …. 18.56
reckless indifference …. 18.56, 18.57
overview …. 18.1, 18.51
policy considerations …. 18.51
purported discharge of duty …. 18.53, 18.60, 18.61
public officer, definition …. 18.60
Misleading or deceptive conduct
misrepresentation …. 19.92–19.116
accessorial liability …. 19.97, 19.98
conduct constituting …. 19.103–19.19.108
contributory negligence …. 19.112
corporations …. 19.95–19.98
damages …. 19.110–19.114
disclaimers …. 19.109
exemplary damages …. 19.114
limitation of actions …. 19.115, 19.116
persons …. 19.95, 19.96, 19.97
trade or commerce …. 19.99–19.101
defamation …. 22.95–22.99
advantages of actions …. 22.97
supply of goods or services …. 22.98
unincorporated individuals …. 22.96
injurious falsehood …. 24.100–24.101
passing off …. 1.50, 24.34-24.36
 common law, distinction …. 24.35
Misrepresentation see Deceit; Misleading or deceptive conduct;
Negligent misrepresentation; Passing off
Mistake
conversion …. 6.64
detinue …. 6.64
false imprisonment …. 6.64
overview …. 6.64
trespass to chattels …. 5.26
Motive …. 1.8
Motor vehicle accidents
compensation schemes …. 9.66
dependency claims …. 16.46
no-fault schemes …. 1.47, 2.22, 9.66, 15.97
periodic payments …. 15.37
contributory negligence …. 13.12
apportionment legislation …. 13.23, 13.24, 13.26
causation …. 13.20
failure to use safety devices …. 13.27, 13.28–13.30
intoxication …. 13.12, 13.42–13.45
100% apportionment …. 13.26
exemplary damages …. 15.22
joint illegal enterprise …. 13.74, 13.75
overview …. 1.47
third party insurance …. 1.57, 9.58, 9.65, 20.60
gratuitous care services …. 15.93, 15.94, 15.95, 15.97
 volenti non fit injuria …. 13.65
defective vehicles …. 13.65
defendant intoxicated …. 13.63
implied acceptance …. 13.65
inexperienced drivers …. 13.65
intoxication …. 13.61, 13.62, 13.63
plaintiff intoxicated …. 13.62
Motor vehicle drivers
breach of duty …. 11.78
anticipation of negligence …. 11.80, 11.82
duty of care …. 9.8, 9.57, 9.60
child drivers …. 9.57
off-road and rally events …. 9.61
pedestrians …. 9.63
police officers …. 9.57
scope of duty …. 9.62–9.64
taxi drivers …. 9.64
third party insurance …. 9.58, 9.65
unborn child …. 9.59
inexperienced drivers …. 1.57, 11.23, 11.25, 13.65
knowledge of inexperience …. 11.24, 11.25
volenti non fit injuria …. 13.65
standard of care …. 9.60, 11.25, 11.78
inexperience …. 1.57, 11.23, 11.24, 11.25
intoxication …. 11.26
third party insurance …. 1.57, 9.58, 9.65
Motor vehicle owners
vicarious liability …. 20.57, 20.58
hire care firms …. 20.59
legislation …. 20.60
rebuttal of presumption …. 20.59
Motor vehicles
conversion …. 5.50
‘joy-ride’ cases …. 5.50
security interests …. 5.17
trespass to chattels …. 5.13, 5.17, 5.50
Multiple tortfeasors see also Concurrent tortfeasors
interpretation …. 21.1
legal relationships …. 21.2
overview …. 21.1
successive tortfeasors …. 21.2
concurrent tortfeasors, distinction …. 21.3

N
Necessity
imminent threat …. 6.41
defendant’s actions or negligence …. 6.43
medical necessity …. 6.44
force feeding …. 6.50
overview …. 6.39
private nuisance …. 25.63
reasonable necessity …. 6.42
 requirements of defence …. 6.40
Negligence
animals …. 26.24, 26.29
breach of duty …. 26.32
defences …. 26.33
knowledge of dangerous propensity …. 26.30
obvious risk …. 26.31
straying onto highways …. 26.35, 26.36
basis of liability …. 25.97
breach of standard of care see Breach of duty
calculus of negligence …. 8.14
consent …. 13.48
contract, and …. 1.30
contributory see Contributory negligence
damage element see Causation; Damage requirement
damages …. 15.26
compensatory damages …. 15.26, 15.28
exemplary damages …. 15.21
defences …. 13.1, 25.101
animals …. 26.33
civil liability legislation …. 13.1
consent …. 13.48
exclusion of liability clauses …. 13.1, 13.104, 13.105
good Samaritans …. 13.99, 13.100
illegality …. 13.71–13.79
immunity from liability …. 13.80–13.103
 inherent risk …. 13.95, 13.96
joint illegal enterprise …. 13.72–13.75, 13.79, 25.101
medical professionals …. 13.88–13.92
obvious risk …. 13.93, 13.94
plaintiff’s illegal activity …. 13.76–13.79
professional practice standards …. 13.81–13.87, 13.91
public safety entities …. 13.101
rescue cases …. 13.97–13.101
volunteers …. 13.102, 13.103
definition …. 1.6
distinguishing feature …. 8.3
Donoghue v Stevenson …. 1.42, 8.11
duty of care see Duty of care
elements …. 8.4, 8.5, 8.6, 25.93
difficulties in distinguishing …. 8.5, 8.6
evolution of action …. 1.39, 1.40, 1.41, 1.43, 25.94
contractual relationships …. 1.40, 1.41
Donoghue v Stevenson …. 1.42
employment relationship …. 1.43
insurance, and …. 1.43, 1.51, 1.52
neighbour principle …. 1.42
pure economic loss …. 1.43
fault …. 2.18, 20.1
intention …. 2.22, 2.25, 3.18
jury trials …. 11.88
appeals …. 11.93–11.96
 control of proceedings …. 11.89
directions to jury …. 11.91
limit on availability …. 8.26, 11.92
questions of fact …. 8.24, 11.88
questions of law …. 8.24, 11.88
withholding case from jury …. 11.90
legal concept …. 8.2
neighbour principle …. 1.42, 8.11
nuisance, comparison …. 25.93
basis of liability …. 25.97
class of wrongdoers …. 25.96
damage …. 25.100
defences …. 25.101
historical development …. 25.94
interests protected …. 25.95
onus of proof …. 25.99
reasonableness, measuring …. 25.98
remedies …. 25.102
right to sue …. 25.95
onus of proof …. 2.23, 25.99
overview …. 8.1, 8.2, 8.3, 11.2, 25.93
personal injury damages see Personal injury damages
psychiatric illness …. 1.15
questions of fact …. 8.23, 8.26, 11.88
appeals …. 8.24, 8.25
questions of law …. 8.21, 8.22, 8.26, 11.88
 appeals …. 8.24
reasonable foreseeability …. 8.7, 8.8
reasonableness, measuring …. 25.98
scope of protection …. 8.1
standard of care see Standard of care
structure of action …. 8.4, 8.5, 8.6
voluntary assumption of risk see Volenti non fit injuria
Negligent misrepresentation
assumption of responsibility …. 19.19, 19.21, 19.23
disclaimers …. 19.46, 19.48
evidence of assumption …. 19.25
financial interest of speaker …. 19.26
implied acceptance …. 19.48
objective determination …. 19.24
Australian Consumer Law, and …. 1.50, 19.3, 19.92
breach of duty …. 19.9, 19.53
question of fact …. 19.56
contributory negligence …. 19.59
damage requirement …. 19.9, 19.57
reasonable foreseeability …. 19.58
damages …. 19.60
consequential loss …. 19.61
loss of opportunity …. 19.61
disclaimers …. 19.21, 19.46, 19.47, 19.50
implied acceptance …. 19.48
no reliance clauses …. 19.49
duty of care …. 10.79, 19.1, 19.9, 19.18, 19.42
assumption of responsibility …. 19.19, 19.21, 19.23–19.26, 19.46,
19.48
characteristics of relationship …. 19.20
continuous duty …. 19.52
current approach …. 19.22
determining existence …. 19.19
disclaimers …. 19.21, 19.46–19.50
historical background …. 19.10–19.17
indeterminate liability …. 19.42
policy considerations …. 19.10, 19.17, 19.42
reasonable foreseeability …. 19.19
reasonable reliance …. 19.19, 19.21, 19.27–19.45, 19.47, 19.49
recognition of duty …. 19.11
scope of duty …. 19.51, 19.52
special relationship …. 19.12, 19.13, 19.14, 19.17, 19.20, 19.21, 19.22
third parties …. 19.42–19.45
establishing an action …. 19.9
historical background …. 19.10
Australian position …. 19.15, 19.16
limited liability …. 19.12, 19.14
policy considerations …. 19.10
recognition of duty …. 19.11
special relationship …. 19.12, 19.13, 19.14, 19.17
limitation of actions …. 19.62
contracts …. 19.63
overview …. 19.1, 19.2, 19.9
pure economic loss …. 10.79, 10.98, 19.1, 19.9, 19.18, 19.64
historical background …. 19.10, 19.11
reasonable foreseeability …. 19.58
reasonable reliance …. 19.19, 19.21, 19.27, 19.30, 19.31
business of giving advice …. 19.39
casual or social context …. 19.35
circumstances of provision …. 19.33–19.36
disclaimers …. 19.47, 19.49
implied reliance …. 19.37
intention to induce reliance …. 19.29, 19.30
‘kerbside opinion’ …. 19.35
nature of advice or information …. 19.32
‘off-the-cuff’ advice …. 19.35
provisional estimates …. 19.36
relevant factors …. 19.31
significant business experience …. 19.28
special skill …. 19.38, 19.39
statutory authorities …. 19.40, 19.41
third parties …. 19.42–19.45
volunteered information …. 19.34
vulnerability of plaintiff …. 19.28
special relationship …. 19.12, 19.13, 19.14, 19.17
characteristics of relationship …. 19.20
factors in establishing …. 19.21, 19.22
standard of care …. 19.54
 statutory authorities …. 19.40, 19.41
third parties …. 19.42
ascertainable classes …. 19.44, 19.45
auditor’s reports …. 19.43
valuations …. 19.44, 19.45
Neighbour principle …. 1.42, 8.11, 8.12, 9.4, 10.5, 10.8
Nervous shock see Intentional infliction of psychiatric injury;
Pure psychiatric injury
No fault compensation see also Criminal injuries compensation;
Motor vehicle accidents; Workers’ compensation
overview …. 1.45
Non-delegable duty see also Vicarious liability
breach of duty …. 20.81
child sexual abuse …. 20.81, 20.82
intentional acts …. 20.81
strict liability …. 20.82
categories of relationships …. 20.64, 20.72
difficulty in identifying …. 20.74
new categories …. 20.72, 20.75, 20.80
characteristics of relationship …. 20.72
control …. 20.73, 20.75
difficulty in identifying …. 20.74
civil liability legislation …. 20.84
common law imposition …. 20.62
employers …. 9.47, 20.64, 20.65
collateral negligence of contractors …. 20.66
 hospitals …. 9.102, 20.64, 20.68, 20.69
outpatients …. 20.68
specialists treating private patients …. 20.69
Ipp report …. 20.84
landlords …. 20.76
inherent risk of damage …. 20.76, 20.77
meaning …. 20.63
occupiers of premises …. 20.64, 20.70
animals …. 20.71
persons or goods …. 20.71
overview …. 20.3, 20.61, 20.63
school authorities …. 9.75, 20.64, 20.67
child sexual abuse …. 20.81, 20.82
scope of duty …. 20.81, 20.82
scope of duty …. 20.81
ability to discharge duty …. 20.83
strict liability …. 20.82, 20.83
statutory authorities …. 20.78
immigration detainees …. 20.79
Nonfeasance
misfeasance, distinction …. 1.4, 9.67
overview …. 1.4
private nuisance …. 24.34, 24.35
Northern Territory
wrongful death …. 16.9
Nuisance
 damage requirement …. 25.1, 25.97
historical background …. 25.1, 25.94
injunctions …. 15.7
negligence, comparison …. 25.93
basis of liability …. 25.97
class of wrongdoers …. 25.96
damage …. 25.100
defences …. 25.101
historical development …. 25.94
interests protected …. 25.95
onus of proof …. 25.99
reasonableness, measuring …. 25.98
remedies …. 25.102
right to sue …. 25.95
overview …. 25.1, 25.93
private see Private nuisance
public see Public nuisance

O
Obvious risk
animals …. 26.31
dangerous recreational activities …. 13.68, 13.69, 13.70
defence, as …. 13.93, 13.94
definition …. 11.63, 13.53
duty to warn …. 11.63, 13.93
animals …. 26.31
 failure to warn …. 11.62, 11.63
objective test …. 13.94
overview …. 11.62, 26.31
professionals …. 13.87
voluntary assumption of risk …. 13.53
dangerous recreational activities …. 13.68, 13.69, 13.70
onus of proof …. 13.53
plaintiff’s knowledge and experience …. 13.54
statutory presumption …. 13.53
Occupational health and safety see also Employer’s duty to
employees; Workers’ compensation
breach of statutory duty …. 18.3
employee actions …. 9.29
historical development …. 9.28, 9.48, 18.3
national uniform legislation …. 9.49, 9.50
categories of offences …. 9.52
industries outside …. 9.51
specific employer duties …. 9.50
overview …. 9.49
Occupiers of premises
criminal acts of third parties …. 9.5, 9.24
issue of control …. 9.25
employers, as …. 9.40
historical background …. 9.9
abandonment of rules …. 9.10
classes of entrants …. 9.9, 9.17
 old rules …. 9.9, 9.10, 9.17
intoxicated persons …. 1.37, 9.15, 9.16, 9.25, 10.37
landlords …. 9.21, 9.23
occupation, meaning …. 9.22
non-delegable duty …. 20.64, 20.70
animals …. 20.71
persons or goods …. 20.71
occupation, meaning …. 9.11, 9.22
occupiers, meaning …. 9.11
overview …. 9.8, 9.10
private nuisance …. 25.8
consent to be on land …. 25.8
continuation of nuisance …. 25.10
knowledge of nuisance …. 25.8, 25.9, 25.10
pre-occupation nuisance …. 25.9, 25.10
steps to abate nuisance …. 25.11
title to sue …. 25.7
proximity …. 9.10
scope of duty …. 9.12, 9.13, 9.14
civil liability legislation …. 9.17
criminal acts of third parties …. 9.24, 9.25
intoxicated persons …. 9.15, 9.16
landlords …. 9.21–9.23
type of premises …. 9.12
warning signs …. 9.18–9.20
warning signs …. 9.18, 9.19
 relevant factors …. 9.20
Onus of proof
actions on the case …. 2.21
causation …. 12.53
civil liability legislation …. 12.54, 12.55
Ipp report …. 12.55
criminal law …. 1.32
deceit …. 19.68
false imprisonment …. 3.61
civil arrest …. 3.70
limitation of actions …. 14.52
malicious prosecution …. 7.11
negligence …. 2.23, 11.97, 11.111, 25.99
equally consistent evidence …. 11.98
factual evidence …. 11.99
inferences …. 11.98, 11.99
no case to answer …. 11.100, 11.101
res ipsa loquitur …. 11.104, 11.106, 11.111
overview …. 1.32
private nuisance …. 25.54, 25.99
public nuisance …. 25.90, 25.99
trespass …. 2.12, 2.20, 2.23
highway/non-highway distinction …. 2.6, 2.7, 2.20
non-highway cases …. 2.23
statutory authority defence …. 6.49
voluntary assumption of risk …. 13.53
 intoxication …. 13.62

P
Parents
damages …. 17.1
domestic service by child …. 17.21, 17.24
seduction of daughter …. 17.24
dependants, as …. 16.18
disciplinary right …. 6.53
domestic service by child …. 17.21
contributory negligence …. 17.22
enticement and harbouring …. 17.26
seduction of daughter …. 17.24, 17.25
statutory modifications …. 17.23, 17.25
duty of care …. 9.68, 9.77
control of child …. 9.80–9.82
parental immunity …. 9.77, 9.78
‘particular situation’ …. 9.78, 9.79
quality of supervision …. 9.77, 9.78
scope of duty …. 9.79
third parties …. 9.80–9.82
education of child …. 9.69
maintenance of child …. 1.25
tortious proceedings between child, and …. 1.24, 1.25
Parties see Capacity to sue and be sued
Partnerships
 defamation …. 22.86
damages …. 22.87
personal injury damages …. 15.70
vicarious liability …. 20.4
Passing off
account of profits …. 15.6, 24.31
damage requirement …. 24.8, 24.20
likelihood of adverse effect …. 24.20
damages …. 24.30
exemplary damages …. 24.32
defences …. 24.28, 24.29
establishing an action …. 24.7, 24.8
examples …. 24.21
association with plaintiff …. 24.22
celebrity endorsement …. 24.25, 24.26
character merchandising …. 24.27
similar descriptive material …. 24.24
similar or same name …. 24.23
false representation …. 24.8, 24.11
‘calculated to deceive’ …. 24.14, 24.18
common field of activity …. 24.13
deceived …. 24.16–24.19
forms of representation …. 24.12
intention …. 24.14, 24.15
likely impression …. 24.19
mere confusion or uncertainty …. 24.17
 public or section of public …. 24.18, 24.19
visual images …. 24.12
injunctions …. 24.33
injurious falsehood, distinction …. 24.6
inverse passing off …. 24.29
misleading or deceptive conduct …. 1.50, 24.34, 24.36
common law, distinction …. 24.35
overview …. 24.1, 24.6, 24.7, 24.9
remedies …. 24.30
account of profits …. 15.6, 24.31
exemplary damages …. 24.32
injunctions …. 24.33
reputation …. 24.8, 24.9
establishing proof …. 24.10
indirect advertising …. 24.10
trade marks …. 24.37
statutory protection …. 24.34
copyright …. 24.37
misleading or deceptive conduct …. 24.34–24.36
trade marks …. 24.37
Pedestrians
duty of care …. 9.63
Per quod servitium amisit see Loss of services
Personal injuries
cattle trespass …. 26.26
limitation of actions …. 14.8
 awareness of right to claim …. 14.17, 14.18
child sexual abuse …. 14.18
commencement of period …. 14.16–14.20
date of action accruing …. 14.17, 14.18
date of discoverability …. 14.19, 14.20
extension of period …. 14.54–14.62
Ipp report …. 14.9, 14.29
period of limitation …. 14.8, 14.9
procedural notice requirements …. 14.9
private nuisance, and …. 24.31
Personal injury damages
administration of award …. 15.131
aggravated damages …. 15.24
appeals …. 15.151, 15.152
assessment …. 15.53
date to assess …. 15.148
non-pecuniary losses …. 15.111–15.115
award …. 15.148
costs …. 15.149
taxation …. 15.150
collateral benefits …. 15.134
employment benefits …. 15.135
Medicare benefits …. 15.139
social security benefits …. 15.138
voluntary employer payments …. 15.136
voluntary gifts …. 15.134, 15.136
 workers’ compensation …. 15.137
compensatory damages …. 15.55
general damages …. 15.58–15.60
special damages …. 15.56, 15.57
costs …. 15.149
dependency claims …. 16.45
‘egg-shell skull’ rule …. 15.30
employment benefits …. 15.135
voluntary employer payments …. 15.136
exemplary damages …. 15.21
financial loss …. 15.54
future economic losses …. 15.87, 15.140
ascertaining present value …. 15.142
discount rate …. 15.142
inflation …. 15.141
lump sum advantages …. 15.140
general damages …. 15.58
non-pecuniary damages …. 15.60, 15.107–15.128
pecuniary damages …. 15.59, 15.91
gratuitous domestic services …. 15.104
civil liability legislation …. 15.105, 15.106
meaning …. 15.106
nursing care …. 15.106
gratuitous services …. 15.89, 15.90, 15.101
basis of claims …. 15.90
carer’s allowance, and …. 15.91
 civil liability legislation …. 15.96–15.103
classification of damages …. 15.91
future services …. 15.100
general damages, as …. 15.91
hourly rate …. 15.103
indemnity principle …. 15.92
interpretation issues …. 15.99, 15.100
market cost of services …. 15.90
meaning …. 15.102
provision by defendant …. 15.93–15.95
statutory restrictions …. 15.96–15.103
thresholds and limits …. 15.98
wages forgone …. 15.90
heads of damages …. 15.54
hospital expenses …. 15.61
cost of treatment …. 15.65
evidence of future needs …. 15.67
future expenses …. 15.59, 15.63, 15.67, 15.141
indemnity principle …. 15.84, 15.141
institutional or home care …. 15.66
past expenses …. 15.56, 15.62
reasonable and necessary expenses …. 15.64–15.67
illegal activity, and …. 13.77, 13.79
indictable offences …. 13.78
reduction in damages …. 13.78
indemnity principle …. 15.83, 15.133
 collateral benefits …. 15.134
contingencies or vicissitudes …. 15.86–15.88
employment benefits …. 15.135
future economic losses …. 15.87, 15.141
gratuitous services …. 15.92
loss of earning capacity …. 15.84, 15.85, 15.86–15.88, 15.133
overlap of damage …. 15.83, 15.84
social security benefits …. 15.138
voluntary employer payments …. 15.136
voluntary gifts …. 15.134, 15.136
interest …. 15.143, 15.144
exercise of discretion …. 15.145
non-pecuniary damages …. 15.147
ordinary commercial rates …. 15.146
taxation …. 15.150
jury trials …. 15.152
loss of amenities …. 15.60, 15.107, 15.108, 15.124, 15.127
age of plaintiff …. 15.126
indigenous persons …. 15.125
pre-injury activities …. 15.125, 15.127
loss of earning capacity …. 15.54, 15.68
assessment period …. 15.77–15.80
calculation net of tax …. 15.85
children …. 15.73
contingencies or vicissitudes …. 15.86–15.88
court’s approach …. 15.69
 early retirement …. 15.76
future children …. 15.88
future household help …. 15.88
future increased earnings …. 15.71
future loss …. 15.59, 15.78, 15.88, 15.140, 15.141
imprecise weekly loss …. 15.74
indemnity principle …. 15.84, 15.85, 15.86–15.88, 15.133, 15.141
irregular employment …. 15.72
life expectancy …. 15.80
loss of earnings, distinction …. 15.68
‘lost years’ component …. 15.80
net amount …. 15.85
partnership income …. 15.70
past loss …. 15.56, 15.77
pre-existing medical conditions …. 15.79
remaining unemployed …. 15.75
statutory restrictions …. 15.81, 15.82
superannuation contributions …. 15.82
loss of expectation of life …. 15.60, 15.107, 15.108, 15.117
objective loss …. 15.118
management of award …. 15.131
medical expenses …. 15.61
cost of treatment …. 15.65
evidence of future needs …. 15.67
future expenses …. 15.59, 15.63, 15.67, 15.141
institutional or home care …. 15.66
 past expenses …. 15.56, 15.62
reasonable and necessary expenses …. 15.64–15.67
mitigation of damage …. 15.57
institutional or home care …. 15.66
notice of action …. 15.44
non-pecuniary losses …. 15.54, 15.60, 15.107
age of plaintiff …. 15.116, 15.117
assessment …. 15.111–15.115
civil liability legislation …. 15.108–15.115
court’s considerations …. 15.115
degree of insight …. 15.119
injury scale values …. 15.112, 15.113
life expectancy …. 15.117, 15.118
loss of amenities …. 15.60, 15.107, 15.108, 15.124–15.127
loss of expectation of life …. 15.60, 15.107, 15.108, 15.117, 15.118
pain and suffering …. 15.60, 15.107, 15.108, 15.120–15.123
pre-existing conditions …. 15.113, 15.128
Queensland …. 15.112–15.115
rules of court …. 15.113
thresholds and limits …. 15.109, 15.110
whole person impairment …. 15.114
once and for all rule …. 15.33
disadvantages …. 15.35
fresh evidence …. 15.34
other expenses …. 15.129
administration of award …. 15.131
 management of award …. 15.131
remodelling of home …. 15.130
overview …. 15.1, 15.53, 15.54
pain and suffering …. 15.60, 15.107, 15.108, 15.120, 15.123
permanent unconsciousness …. 15.122
relevant factors …. 15.121
remodelling of home …. 15.130
social security benefits …. 15.138
gratuitous care, and …. 15.91
special damages …. 15.56
hospital expenses …. 15.62
loss of earning capacity …. 15.77
medical expenses …. 15.62
reasonable expenses …. 15.57
statutory modification …. 1.18, 15.53
background to reforms …. 15.53
structured settlements …. 15.37, 15.38
definition …. 15.37
tax advantages …. 15.38
taxation …. 15.150
interest …. 15.150
loss of earnings …. 15.85
trespass to person …. 3.78
types of losses …. 15.54
workers’ compensation, and …. 15.137
Personal property securities …. 5.17
Police officers
arrest powers …. 3.64, 3.65
delay in charging …. 3.65
trespass to land …. 4.28
warrant arrests …. 3.67
warrant without authority …. 3.68
without warrant …. 3.65, 3.66
duty of care …. 10.144
road users …. 9.57
false imprisonment …. 3.51
arrest powers …. 3.65–3.68
assertion of authority …. 3.58
delay in charging …. 3.65
warrant arrests …. 3.67
intimidation …. 24.79
trespass to land …. 4.28
authorised by law …. 4.37, 6.48, 6.50
revocation of consent …. 4.35, 6.28
vicarious liability …. 20.20, 20.88
statutory reform …. 20.20, 20.88
Prison authorities
defence forces …. 3.72
duty of care …. 9.68, 9.83
at risk prisoners …. 9.88
employees …. 9.89
escaped prisoners …. 9.89
 immigration detention …. 9.84
paroled prisoners …. 9.90
reasonable precautions …. 9.87
scope of duty …. 9.85–9.88
third parties …. 9.89, 9.90
false imprisonment …. 3.71, 6.64
defence forces …. 3.72
Prisoners
force feeding …. 6.50
legal disability …. 14.42
limitation of actions …. 14.42
Privacy
Australian Law Reform Commission …. 7.21, 7.28
statutory cause of action …. 7.29
types of interferences …. 7.30
invasion of privacy …. 3.36, 7.20, 7.22
broadcasting …. 7.24, 7.25, 7.27, 7.28
developing technologies …. 7.20
development of tort …. 3.36, 7.23–7.27
elements …. 7.25
listening devices …. 6.50
New Zealand …. 7.31
other jurisdictions …. 7.31
public interest defence …. 7.25
recognition of tort …. 7.22, 7.25, 7.26, 7.27
reform recommendations …. 7.21, 7.28–7.30
 United Kingdom …. 7.31
overview …. 1.12, 7.20
surveillance devices …. 7.22
trespass to land …. 7.22
Private nuisance
abatement …. 25.68, 25.102
trespass to land …. 6.38, 25.68
animals …. 26.1, 26.39
balancing of rights …. 25.3
basis of liability …. 25.97
competing interests …. 25.3, 25.42
continuing nuisance …. 25.5, 25.76
contributory negligence …. 25.59, 25.101
damage requirement …. 25.4, 25.53, 25.97, 25.100
reasonably foreseeable …. 25.53
damages …. 25.71, 25.72, 25.102
decrease in land value …. 25.74
enjoyment of land …. 25.75
loss of amenity …. 25.75
loss of profits …. 25.72
material damage …. 25.73, 25.74
defences …. 25.55, 25.64, 25.101
activities benefiting society …. 25.66
acts of another …. 25.62
consent …. 25.61
contributory negligence …. 25.59
 easements …. 25.60
jus tertii, and …. 25.65
necessity …. 25.63
statutory authorisation …. 25.55–25.58, 25.101
easements …. 25.60
prescriptive right …. 25.60
elements …. 25.4
enjoyment of land …. 24.16, 24.17, 24.28, 24.30, 24.40, 25.53
abnormal sensitivity …. 25.51
availability of alternative means …. 25.49, 25.50
competing interests …. 24.42
cost of alternative means …. 25.50
court’s approach …. 24.42
damages …. 25.75
duration of interference …. 25.46
locality …. 24.43, 24.44
motive of defendant …. 25.52
nature of activities …. 25.47, 25.48
reasonable person test …. 24.42
social utility of activities …. 25.48
substantial interference …. 24.41
time of interference …. 25.45
unreasonable interference …. 24.42–25.52
historical background …. 25.1, 25.94
injunctions …. 24.28, 25.69, 25.75, 25.102
quia timet injunctions …. 25.70, 25.71
 types of injunctions …. 25.70
interference with protected rights …. 24.27, 24.31
actual or likely interference …. 24.29
enjoyment of land …. 24.28, 24.30, 24.40–25.52
isolated interference …. 24.27
material damage …. 24.30, 24.32–25.39
one-off occurrence …. 24.27
personal injuries …. 24.31
interference with rights …. 25.4, 24.16
kinds of interference …. 24.16
measuring reasonableness …. 25.98
rights capable of protection …. 24.16–25.26
landlord and tenant …. 25.12
control of activities …. 25.13
failure to repair …. 25.14
title to sue …. 25.6, 25.7
lawful interference …. 25.3
limitation period …. 25.76
material damage …. 24.16, 24.30, 24.32, 25.53
chattels on land …. 24.33
damages …. 25.73, 25.74
misfeasance …. 24.34, 24.36–25.39
nonfeasance …. 24.34, 24.35
misfeasance …. 24.34, 24.36
fault …. 24.38, 24.39
Rylands v Fletcher …. 24.38, 24.39
 strict liability …. 24.36, 24.38, 24.39
nonfeasance …. 24.34, 24.35
occupiers of land …. 25.8, 25.96
consent to be on land …. 25.8
continuation of nuisance …. 25.10
knowledge of nuisance …. 25.8, 25.9, 25.10
pre-occupation nuisance …. 25.9, 25.10
steps to abate nuisance …. 25.11
title to sue …. 25.7
onus of proof …. 25.54, 25.99
overview …. 25.1, 25.2, 25.3, 25.93
remedies …. 25.67, 25.102
abatement …. 25.68
damages …. 25.71–25.75
equitable damages …. 25.71
injunctions …. 25.69, 25.70
rights capable of protection …. 24.16, 24.17, 25.95
access …. 24.24
enjoyment of land …. 24.17
land, meaning …. 24.17
light …. 24.21, 24.22
noise and vibration …. 24.26
smells and fumes …. 24.25
support of land …. 24.18–25.20
riparian rights …. 24.23
statutory authorisation …. 25.55, 25.101
 establishing defence …. 25.56
intention of legislature …. 25.56, 25.57
operation of defence …. 25.58
support of land …. 24.18
scope of protection …. 24.19
statutory abolition …. 24.20
title to sue …. 25.4, 25.5, 25.95
actual possession of land …. 25.5
family of owner or tenant …. 25.7
licensees …. 25.7
mere occupation …. 25.7
mere possession …. 25.7
owners …. 25.6, 25.7
reversionary owners …. 25.6
tenants …. 25.6, 25.7
trespasser’s liability …. 25.15
unlawful interference …. 25.2, 25.3
who can be sued …. 25.15
creator of nuisance …. 25.15
landlord and tenant …. 25.12–25.14
occupiers of land …. 25.8–25.11
trespassers …. 25.15
Product liability see Defective products
Professionals
civil liability legislation …. 11.18
advice or warnings …. 11.74–11.76
 professional practice standards …. 11.72, 11.74, 13.82–13.87, 13.91,
19.55
definition …. 13.84
duty of care …. 9.8, 9.91, 10.97
content of duty …. 9.93
examples of relationships …. 9.92
pure economic loss …. 9.94, 10.79, 10.97–10.106
third parties …. 9.94, 10.79, 10.97–10.106
legal professionals see Barristers; Solicitors
medical professionals see Medical professionals
negligent misrepresentation …. 19.55
professional practice standards …. 11.71, 13.81
advice or warnings …. 11.74, 13.86, 13.91, 19.55
civil liability legislation …. 11.72, 11.74, 13.82–13.87, 19.55
defence, as …. 13.83
harm, definition …. 13.86
obvious risks …. 13.87
peer professional opinion …. 13.85
professional, definition …. 13.84
proportionate liability …. 21.31
standard of care …. 11.14, 11.71
accepted practice …. 11.72
advice or warnings …. 11.74–11.77, 13.86
civil liability legislation …. 11.18, 11.72, 11.74–11.76, 13.82, 13.86
knowledge at time …. 11.18
professional practice standards …. 11.71–11.77, 13.81, 13.82, 13.86
 specialists …. 11.15
third parties …. 9.94, 10.79, 10.97
coherency …. 10.104–10.106
coincident interests …. 10.104, 10.105
control and vulnerability …. 10.102, 10.103
Hill v Van Erp …. 10.100
indeterminate liability …. 10.106
reluctance to extend scope …. 10.99
scope of duty …. 10.101
Profits a prendre
trespass to land …. 4.12
Property damage see also Defective structures
damages …. 15.45
benefit from damage …. 15.47
consequential losses …. 15.49–15.52
cost of repairs …. 15.46
diminished value …. 15.46
‘egg-shell skull’ rule …. 15.30
loss of use of funds …. 15.50, 15.51
opportunity cost …. 15.51
profit-making property …. 15.49
replacement costs …. 15.48
legal recognition …. 12.4
limitation of actions …. 14.10
categorisation of damage …. 14.24
commencement of period …. 14.21–14.25
 continuing trespass to land …. 14.13
conversion …. 14.12
defective buildings …. 14.11, 14.22–14.25
extension of period …. 14.63
latent defects …. 14.21, 14.22–14.24
period of limitation …. 14.10–14.13
relational loss …. 10.79, 10.81, 10.86
ascertainable class …. 10.87–10.90
Caltex decision …. 10.82, 10.83, 10.85
indeterminate liability …. 10.84, 10.86, 10.87
insurance …. 10.93
interference with pursuit of business …. 10.94–10.96
interruption of gas supply …. 10.90, 10.93
reasonably foreseeable …. 10.90
vertically integrated operations …. 10.88, 10.89
vulnerability and control …. 10.91–10.93
Proportionate liability
background to proposals …. 21.28, 21.30, 21.31
civil liability legislation …. 21.32
apportionable claims …. 21.34
apportioning liability …. 21.41, 21.42
concurrent wrongdoer, definition …. 21.35, 21.36, 21.37, 21.38
excluded claims …. 21.39, 21.40
fraudulent wrongdoers …. 21.40
intentional wrongdoers …. 21.40
requirements …. 21.33
 Ipp report …. 21.32
overview …. 21.30, 21.32
Provocation
assault and battery …. 3.43, 3.44, 6.35, 6.36
elements …. 6.35
overview …. 6.35
statutory defence …. 6.35, 6.36
Psychiatric illness see also Intentional infliction of psychiatric
injury; Pure psychiatric injury
fear of developing …. 12.17
grief, distinction …. 12.16
overview …. 1.15
recognition of damage …. 12.16, 12.17
Public and statutory duties
abuse of process …. 18.1, 18.41, 18.42
damage requirement …. 18.44, 18.49
defences …. 18.50
defendant as party to proceedings …. 18.48
elements …. 18.44
improper purpose …. 18.44, 18.45
malicious prosecution, distinction …. 18.47
mixed purposes …. 18.46
recognition in Australia …. 18.43
breach of statutory duty see Breach of statutory duty
misfeasance in public office …. 18.1, 18.51
damage requirement …. 18.53, 18.62, 18.63
 elements …. 18.53
foreseeability of harm …. 18.63
intention of defendant …. 18.52
invalid or unauthorised act …. 18.53, 18.54–18.59
malice …. 18.56–18.59
policy considerations …. 18.51
public officer, definition …. 18.60
purported discharge of duty …. 18.53, 18.60, 18.61
overview …. 18.1
Public authorities see also Police officers
breach of duty …. 10.131, 10.132
breach of statutory duty …. 18.33
civil liability legislation …. 10.131, 10.132
breach of statutory duty …. 18.33
common law, and …. 10.134
function, definition …. 10.133
policy or operational decisions …. 10.138
road authorities …. 10.148, 10.149, 10.150, 10.151
duty of care …. 10.3, 10.4, 10.10, 10.120, 10.122
civil liability legislation …. 10.131–10.134, 10.138
coherency of the law …. 10.143–10.145
control and vulnerability …. 10.139–10.142
difficulties of novel duties …. 10.123
duty to act …. 10.127, 10.129
established categories …. 10.121
exercise of power …. 10.122, 10.126, 10.127, 10.128
 failure to exercise power …. 10.127, 10.130
policy or operational decisions …. 10.120, 10.135–10.138
pure economic loss …. 10.124
reasonable foreseeability …. 10.131
relevant factors …. 10.131–10.145
road authorities …. 10.6
salient features approach …. 10.22
statutory exemptions …. 10.125
statutory power …. 10.126–10.130
types of damage …. 10.124
examples of authorities …. 10.120
intimidation …. 24.79
negligent misrepresentation …. 19.40
reasonable reliance …. 19.41
non-delegable duty …. 20.78
immigration detainees …. 20.79
operational decisions …. 10.135, 10.137
civil liability legislation …. 10.138
policy decisions, distinction …. 10.136
overview …. 10.120
policy decisions …. 10.120, 10.136, 10.137
civil liability legislation …. 10.138
operational decisions, distinction …. 10.136
road authorities …. 10.6, 10.146, 25.84
actual knowledge of risk …. 10.149, 10.150, 10.151
civil liability legislation …. 10.148, 10.149, 10.150, 10.151
 ‘highway rule’ …. 10.6, 10.146, 10.147, 10.148
public nuisance …. 25.84
reinstatement of rule …. 10.148
Public interest defence
invasion of privacy …. 7.25
Public nuisance see also Private nuisance
abatement …. 25.92, 25.102
trespass to land …. 6.38
animals …. 26.1, 26.40
straying onto highways …. 26.38
basis of liability …. 25.97
contributory negligence …. 25.101
damage requirement …. 25.77, 25.97, 25.100
damages …. 25.102
defences …. 25.91, 25.101
elements …. 25.77
historical background …. 25.1, 25.94
injunctions …. 25.102
interference with public right …. 25.77, 25.85, 25.95
class of the public …. 25.87
failure to discharge duty …. 25.86
measuring reasonableness …. 25.98
public highways …. 25.85
public right, meaning …. 25.85
substantial and unreasonable …. 25.88, 25.89
landlord and tenant …. 25.83
 occupiers of land …. 25.82, 25.96
adjoining highways …. 25.89
onus of proof …. 25.90, 25.99
overview …. 18.1, 25.1, 25.77, 25.93
owners of land …. 25.82
public authorities …. 25.84
public highways …. 25.79, 25.85
occupier’s adjoining land …. 25.89
particular damage …. 25.79, 25.80
road authority’s liability …. 25.84
substantial inconvenience …. 25.80
remedies …. 25.92, 25.102
road authorities …. 25.84
title to sue …. 25.77, 25.95
Attorney-General …. 25.78
individuals …. 25.79
relator actions …. 25.79, 25.80
who can be sued …. 25.81
landlord and tenant …. 25.83
owners and occupiers …. 25.82
public authorities …. 25.84
road authorities …. 25.84
Public officials
duty of care …. 9.123
Public safety entities
immunity from liability …. 13.101
Pure economic loss
consequential loss, distinction …. 10.78
defective products …. 9.120
defective structures …. 10.79, 10.107
Bryan v Maloney …. 10.108, 10.109
coherency of the law …. 10.115
control and vulnerability …. 10.110–10.114
indeterminate liability …. 10.118
pursuit of business interests …. 10.117
relationship between parties …. 10.116, 10.117
duty of care …. 10.2, 10.4, 10.77, 10.78, 19.1
categories of claims …. 10.79
defective structures …. 10.79, 10.107–10.118
exceptions to exclusion …. 10.79
exclusionary rule …. 10.77
negligent misrepresentation …. 10.79, 19.10, 19.11
professional services …. 9.94, 10.79, 10.97–10.106
public authorities …. 10.124
relational loss …. 10.79, 10.81–10.96
salient features approach …. 10.22
scope of duty …. 10.80
infringement of rights …. 1.10
insurance, and …. 1.57
legal recognition …. 12.4
negligent misrepresentation …. 10.79, 10.98, 19.1, 19.9, 19.18, 19.64
historical background …. 19.10, 19.11
 reasonable foreseeability …. 19.58
overview …. 1.10, 10.2, 10.77, 19.1
professional services …. 9.94, 10.79, 10.97, 10.98
coherency …. 10.104–10.106
coincident interests …. 10.104, 10.105
control and vulnerability …. 10.102, 10.103
Hill v Van Erp …. 10.100
indeterminate liability …. 10.106
reluctance to extend scope …. 10.99
scope of duty …. 10.101
public authorities …. 10.124
relational loss …. 10.79, 10.81, 10.86
ascertainable class …. 10.87–10.90
Caltex decision …. 10.82, 10.83, 10.85
indeterminate liability …. 10.84, 10.86, 10.87
insurance …. 10.93
interference with pursuit of business …. 10.94–10.96
interruption of gas supply …. 10.90, 10.93
reasonably foreseeable …. 10.90
vertically integrated operations …. 10.88, 10.89
vulnerability and control …. 10.91–10.93
Pure psychiatric injury
civil liability legislation …. 10.59
consequential psychiatric injury …. 10.46
foreseeability of harm …. 10.59
limits on liability …. 10.69, 10.70
 recognised psychiatric illness …. 10.45
consequential psychiatric injury …. 10.46
development over time …. 10.58
direct perception …. 10.48, 10.52, 10.53
lack of direct perception …. 10.53, 10.54, 10.55, 10.56, 10.61
other jurisdictions …. 10.55
duty of care …. 10.2, 10.4, 10.40, 10.42, 10.72
civil liability legislation …. 10.45, 10.46, 10.59, 10.69, 10.70
coherency of law, and …. 10.71
current approach …. 10.42, 10.43
direct perception …. 10.48, 10.52–10.56
employers …. 9.35, 10.72–10.76
established duties …. 10.72–10.76
indeterminate liability …. 10.43, 10.67–10.70
normal fortitude …. 10.48, 10.49–10.51
reasonable foreseeability …. 10.30, 10.31, 10.41, 10.42, 10.43,
10.47–10.58, 10.60, 10.64, 10.76
recognised psychiatric injury …. 10.44–10.46
relationship between parties …. 10.43, 10.56, 10.61–10.63, 10.68
relevant factors …. 10.43, 10.60–10.71
sudden shock …. 10.48, 10.57, 10.58
vulnerability and control …. 10.43, 10.64–10.66
employer’s duty …. 9.35, 10.72, 10.76
bullying and harassment …. 10.76
legitimate business interests …. 10.75
reasonable foreseeability …. 10.76
 scope of duty …. 9.35, 10.73, 10.74
indeterminate liability …. 10.43, 10.67
civil liability legislation …. 10.69, 10.70
relationship between parties …. 10.68
legal recognition …. 12.4
normal fortitude …. 10.48, 10.49
application of standard …. 10.50
awareness of special position …. 10.51
overview …. 10.2, 10.40
reasonable foreseeability …. 10.30, 10.31, 10.41, 10.42, 10.43, 10.47, 10.48,
10.60
awareness of special position …. 10.51
direct perception …. 10.48, 10.52–10.56
distance in space and time …. 10.54
employer’s duty …. 10.76
lack of direct perception …. 10.53, 10.54, 10.55
normal fortitude …. 10.48, 10.49–10.51
sudden shock …. 10.48, 10.57, 10.58
time for assessment …. 10.48
vulnerability …. 10.64
recognised psychiatric injury …. 10.44
civil liability legislation …. 10.45, 10.46
consequential psychiatric injury …. 10.46
relationship between parties …. 10.43, 10.56, 10.61, 10.62
assurances of safety …. 10.62
close and loving relationship …. 10.61, 10.63
 indeterminacy, and …. 10.68
lack of direct perception …. 10.61
sudden shock …. 10.48, 10.57
Australian position …. 10.58

Q
Qualified privilege see also Absolute privilege
common law …. 23.34, 23.35, 23.47
application of principles …. 23.36
audience at large …. 23.44
categories of privilege …. 23.37
common interest …. 23.41–23.44
defence of reputation or property …. 23.43
gossip or curiosity …. 23.42
identification of occasion of privilege …. 23.36
legal or moral duty to publish …. 23.36, 23.39
reciprocity of duty …. 23.34, 23.38, 23.40, 23.41, 23.71, 23.73
response to attack …. 23.45, 23.46
defamation legislation …. 23.47, 23.49
court’s considerations …. 23.48
loss of privilege …. 23.50
defamation legislation …. 23.49, 23.51
improper motive …. 23.50, 23.51
malice …. 23.49, 23.50, 23.51, 23.52–23.57, 23.77
malice …. 23.50, 23.51, 23.52
defamation legislation …. 23.49, 23.51
 lack of honest belief …. 23.53, 23.54, 23.55
political communication …. 23.77
vicarious liability …. 23.56, 23.57
overview …. 23.33, 23.71
policy behind defence …. 23.33
political communication …. 23.71, 23.72
government or political matters …. 23.75
implied freedom …. 23.72–23.77
loss of defence …. 23.77
malice …. 23.77
reasonable publication …. 23.76
requirements of defence …. 23.74
scope of protection …. 23.73
state constitutions …. 23.72
protected reports, and …. 23.58
social objects …. 23.58
Quare trespass …. 1.39
Queensland
animals straying onto highways …. 26.35
assault and battery …. 3.37, 3.39
assault, definition …. 3.4, 3.19, 3.37, 3.38, 3.39, 3.40, 3.41, 6.32
common law, comparison …. 3.41–3.45
consent …. 3.42
defences …. 3.43–3.45, 6.32, 6.35
indirect force …. 3.41
provocation …. 3.43, 3.44, 6.35
 self-defence …. 6.32
standard of proof …. 3.38
contributory negligence …. 6.61
personal injury damages …. 15.112, 15.152
court’s considerations …. 15.115
injury scale values …. 15.112, 15.114
rules of court …. 15.113
whole person impairment …. 15.114
wrongful death …. 16.5
Questions of fact
appeals …. 8.24, 8.25
overview …. 8.23, 8.26, 11.88
Questions of law
appeals …. 8.24
breach of duty …. 8.22
damage requirement …. 8.22
duty of care …. 8.22
overview …. 8.21, 8.26, 11.88

R
Reasonable foreseeability
breach of duty …. 8.7, 8.8, 8.14, 11.38, 11.39, 11.43
chain of events …. 11.41
criticisms of approach …. 11.43
hindsight …. 11.42
Ipp Report …. 8.15, 8.16, 11.38
 knowledge of risk …. 11.39
mere recognition …. 11.40
prospective determination …. 11.42
remote or unlikely risk …. 11.39, 11.51
damage requirement …. 8.7, 8.8, 8.18, 12.61
deceit …. 19.83, 19.85
injurious falsehood …. 24.97
intervening acts …. 12.75, 12.77–12.80
negligent misrepresentation …. 19.58
private nuisance …. 25.53
remoteness of damage …. 8.8, 12.61–12.68
duty of care …. 8.7, 8.8, 8.12, 10.8, 10.30, 10.31
Anns approach …. 10.11
Caparo approach …. 10.15
considerations …. 10.31
negligent misrepresentation …. 19.19
proximity approach …. 10.12
public authorities …. 10.131
pure economic loss …. 10.90
pure psychiatric injury …. 10.30, 10.31, 10.41, 10.42, 10.43,
10.47–10.58, 10.60, 10.64, 10.76
‘egg-shell skull’ rule …. 12.66
same damage requirement …. 12.67, 12.68
injurious falsehood …. 24.97
intervening acts …. 12.75, 12.77, 12.78
medical treatment …. 12.79, 12.80
 meaning …. 12.65
negligent misrepresentation …. 19.19, 19.58
overview …. 8.7
private nuisance …. 25.53
pure psychiatric injury …. 10.30, 10.31, 10.41, 10.42, 10.43, 10.47, 10.48,
10.60
awareness of special position …. 10.51
direct perception …. 10.48, 10.52–10.56
distance in space and time …. 10.54
employer’s duty …. 10.76
lack of direct perception …. 10.53, 10.54, 10.55
normal fortitude …. 10.48, 10.49–10.51
sudden shock …. 10.48, 10.57, 10.58
time for assessment …. 10.48
vulnerability …. 10.64
remoteness of damage …. 8.8, 12.61, 12.64, 12.65
‘egg-shell skull’ rule …. 12.66–12.68
events leading to damage …. 12.64
real risk of damage …. 12.62, 12.63
wrongful death …. 16.12, 16.15
Recreational activities see Sport and recreational activities
Remedies
account of profits …. 15.6
passing off …. 15.6, 24.31
conversion …. 5.71
damages …. 5.73–5.76, 5.83–5.90, 5.102
 injunctions …. 5.98
self-help …. 5.72
damages see Damages
declaratory judgments …. 15.3
advantages …. 15.4
disadvantages …. 15.5
jurisdiction …. 15.4
defamation …. 23.1, 23.104
damages …. 23.112–23.140
injunctions …. 1.19, 15.7, 23.105–23.111
detinue …. 5.71
damages …. 5.73–5.76, 5.84, 5.91–5.95, 5.100, 5.101, 5.102
injunctions …. 5.99–5.101
return of goods …. 5.84, 5.100, 5.101
self-help …. 5.72
equitable remedies …. 1.19, 15.2
account of profits …. 15.6
court’s discretion …. 15.2
declaratory judgments …. 15.3–15.5
private nuisance …. 25.71
injunctions see Injunctions
injurious falsehood …. 24.98
injunctions …. 24.99
overview …. 1.19, 1.34, 15.1
passing off …. 24.30
account of profits …. 15.6, 24.31
 exemplary damages …. 24.32
injunctions …. 24.33
private nuisance …. 25.67, 25.102
abatement …. 25.68
damages …. 25.71–25.75
equitable damages …. 25.71
injunctions …. 25.69, 25.70
public nuisance …. 25.92, 25.102
trespass to chattels …. 5.71
damages …. 5.73–5.76, 5.77–5.82, 5.102
injunctions …. 5.97, 15.7
self-help …. 5.72
trespass to land …. 4.48
damages …. 4.51–4.64, 4.70
encroachment …. 4.70
injunctions …. 4.65–4.68, 15.7
mesne profits …. 4.69
self-help …. 4.49, 4.50
statutory relief …. 4.70
trespass to person …. 3.75, 3.87
damages …. 3.75–3.84
injunctions …. 3.85, 15.11
limitation of actions …. 3.88
protection orders …. 3.86
Remoteness of damage
overview …. 12.61
 reasonable foreseeability …. 8.8, 12.61, 12.64
‘egg-shell skull’ rule …. 12.66–12.68
events leading to damage …. 12.64
meaning …. 12.65
real risk of damage …. 12.62, 12.63
wrongful death …. 16.11, 16.13
Res ipsa loquitur
adducing specific evidence …. 11.105
control of res …. 11.110
onus of proof …. 11.104, 11.106, 11.111
ordinary explanation for injury …. 11.108, 11.109
overview …. 11.102, 11.103
type of accident …. 11.107
Rescuers
good Samaritans …. 13.99, 13.100
definition …. 13.99
overview …. 13.97
public safety entities …. 13.101
voluntary assumption of risk …. 13.98
Reversionary owners
innominate actions …. 5.70
private nuisance …. 25.6
Road authorities
duty of care …. 10.6, 10.146, 25.84
actual knowledge of risk …. 10.149, 10.150, 10.151
civil liability legislation …. 10.148, 10.149, 10.150, 10.151
 ‘highway rule’ …. 10.6, 10.146, 10.147, 10.148
reinstatement of rule …. 10.148
public nuisance …. 25.84
Road users see Motor vehicle drivers

S
Same-sex spouse …. 16.17
School authorities
attendance requirement …. 9.69
child sexual abuse …. 20.40, 20.46
appropriate test …. 20.43, 20.44, 20.46
court’s considerations …. 20.46
judicial comments …. 20.45
non-delegable duty …. 20.81, 20.82
Royal Commission …. 20.40, 20.47, 20.81
uncertainty …. 20.41
vicarious liability …. 20.41, 20.42, 20.44, 20.45, 20.46, 20.47, 20.81
corporal punishment …. 6.54
disciplinary power …. 6.54
duty of care …. 8.9, 9.68, 9.69, 9.70
non-delegable duty …. 9.75, 20.64, 20.67, 20.81, 20.82
outside school hours …. 9.72
school bus drivers …. 9.73
scope of duty …. 9.71–9.74
standard of education …. 9.74
third parties …. 9.76
 medical emergencies …. 11.29
non-delegable duty …. 9.75, 20.64, 20.67
child sexual abuse …. 20.81, 20.82
scope of duty …. 20.81, 20.82
vicarious liability …. 20.41
child sexual abuse …. 20.41, 20.42, 20.44, 20.45, 20.46, 20.47, 20.81
Scienter
dangerous animals …. 26.1, 26.2
act of God defence …. 26.15
classification of animals …. 26.3
contributory negligence …. 26.14
controller’s liability …. 26.11
damage caused by lack of control …. 26.7
default of plaintiff …. 26.14
defences …. 26.12–26.15
domestic animals …. 26.3, 26.4–26.9
escape from control …. 26.7
ferae naturae …. 26.3, 26.8, 26.10, 26.11
harm and dangerous propensity …. 26.8
keeper’s liability …. 26.5, 26.9
knowledge of propensity …. 26.5, 26.6, 26.11
mansuetae naturae …. 26.3, 26.4–26.9
meaning …. 26.2
owner’s liability …. 26.9
statutory abolition …. 26.2
voluntary assumption of risk …. 26.12, 26.13
 wild animals …. 26.3, 26.8, 26.10, 26.11
deceit …. 19.67, 19.72
agents …. 19.77
ambiguous statements …. 19.74
consciousness of damage …. 19.73
directors …. 19.76
initially true statements …. 19.75
mere carelessness …. 19.73
Seduction
father’s action …. 17.24
husband’s actions …. 17.13, 17.15
abolition …. 17.16
Self-defence
assault …. 6.32
battery …. 6.31, 6.32
degree of force …. 6.31
overview …. 6.30
statutory defence …. 6.32
Several tortfeasors see Concurrent tortfeasors
Slander see Defamation
Social security benefits
personal injury damages, and …. 15.138
gratuitous care …. 15.91
Solatium
wrongful death …. 16.30
Solicitors see also Barristers
absolute privilege …. 23.26
acting for both parties …. 9.105
contractual duty …. 9.107, 9.111
duty of care …. 9.103, 10.99
acting for both parties …. 9.105
advising clients …. 9.108, 9.109
commercial efficacy …. 9.109
legal profession legislation …. 9.118
opposing parties …. 9.104
scope of duty …. 9.107–9.109, 10.99, 10.101
solicitors conduct rules …. 9.116, 9.117
terms of retainer …. 9.107, 9.108
third parties …. 9.106, 10.99–10.106
warning of risks …. 9.108
immunity from suit …. 9.111, 9.112
legal profession legislation …. 9.118
legal professional privilege …. 23.26
misleading or deceptive conduct …. 19.101
overview …. 9.110
solicitors conduct rules …. 9.116, 9.117
standard of care …. 11.14
third party duty …. 9.106, 10.99
coherency …. 10.104–10.106
coincident interests …. 10.104, 10.105
control and vulnerability …. 10.102, 10.103
Hill v Van Erp …. 10.100
 indeterminate liability …. 10.106
reluctance to extend scope …. 10.99
scope of duty …. 10.101
Sport and recreational activities
battery …. 6.7
dangerous recreational activities …. 13.67, 13.70
definition …. 13.67
obvious risk …. 13.68, 13.69, 13.70
relevant principles …. 13.69
significant degree of risk …. 13.69
implied consent …. 6.7
volenti non fit injuria …. 13.66
dangerous recreational activities …. 13.67–13.70
Spouse see also Wrongful death
damages …. 17.1
contributory negligence …. 17.20
husband’s action …. 17.10, 17.17–17.20
loss of consortium and servitium …. 16.31, 17.10, 17.11, 17.17–17.20
wrongful death …. 16.31
defamation …. 22.76
dependants, as …. 16.17
loss of consortium and servitium …. 17.10
abolition of husband’s actions …. 17.12, 17.16
damages …. 16.31, 17.10, 17.11, 17.17–17.20
enticement …. 17.13, 17.15, 17.16
harbouring of wife …. 17.14, 17.15, 17.16
 husband’s actions …. 17.10, 17.12, 17.13–17.15, 17.16
seduction …. 17.13, 17.15, 17.16
wife’s position …. 17.11, 17.13
Stalking
overview …. 3.33
statutory provisions …. 3.33
victims compensation …. 3.34
Standard of care
breach of standard see Breach of duty
civil liability legislation …. 11.8
contributory negligence …. 13.9, 13.12
emergencies …. 11.29
intoxication …. 11.27, 13.12
knowledge at time …. 11.18
medical emergencies …. 11.29
professionals …. 11.18, 11.72, 11.74–11.76, 13.82, 13.86
contributory negligence …. 13.9, 13.10
child plaintiffs …. 13.11
civil liability legislation …. 13.9, 13.12
emergencies …. 13.14
employees …. 13.15, 13.16
intoxication …. 13.12, 13.13
objective standard …. 13.8, 13.9
disabled persons …. 11.11, 11.12
emergencies …. 11.28
civil liability legislation …. 11.29
 contributory negligence …. 13.14
medical emergencies …. 11.29
employers …. 11.79
contributory negligence …. 13.15, 13.16
inexperience …. 11.21, 11.25
knowledge of inexperience …. 11.22, 11.24, 11.25
motor vehicle drivers …. 1.57, 11.23, 11.24, 11.25
relationship between parties …. 11.22
intoxicated plaintiff …. 11.33
intoxication …. 11.26
civil liability legislation …. 11.27
contributory negligence …. 13.12, 13.13
joint illegal enterprise …. 13.73
lack of knowledge or skill …. 11.16
time of alleged breach …. 11.17, 11.18
manufacturers …. 9.122
medical emergencies …. 11.29
person in distress, definition …. 11.29
medical practitioners …. 11.15, 11.74
advice and warnings …. 11.74–11.77
Bolam principle …. 11.73
civil liability legislation …. 11.74–11.76
inexperience …. 11.21
knowledge at time …. 11.17
specialists …. 11.15
mental impairment …. 11.11, 11.13
minors …. 11.9
adult activities …. 11.10
age and experience …. 11.32
contributory negligence …. 13.11
plaintiff, as …. 11.31, 11.32
motor vehicle drivers …. 9.60, 11.25, 11.78
inexperience …. 1.57, 11.23, 11.24, 11.25
intoxication …. 11.26
negligent misrepresentation …. 19.54
professionals …. 19.55
objective test …. 11.4, 11.5
characteristics or circumstances …. 11.6, 11.7
civil liability legislation …. 11.8
relationship between parties …. 11.6
overview …. 11.2, 11.3
professionals …. 11.14, 11.71
advice or warnings …. 11.74–11.77, 13.86, 19.55
civil liability legislation …. 11.18, 11.72, 11.74–11.76, 13.82, 13.86
knowledge at time …. 11.18
negligent misrepresentation …. 19.55
professional practice standards …. 11.71–11.74, 13.81, 13.82, 13.86
specialists …. 11.15
question of law …. 11.4
reasonable person …. 11.5
characteristics or circumstances …. 11.6, 11.7
civil liability legislation …. 11.8
 relationship between parties …. 11.6
skill or knowledge …. 11.14, 11.16
holding out as skilled …. 11.20
inexperience …. 11.21–11.25
laypersons performing skilled tasks …. 11.19
plaintiff’s skill or knowledge …. 11.30
specialised fields …. 11.15
time of alleged breach …. 11.17, 11.18
solicitors …. 11.14
statutory standards …. 11.78
non-binding material …. 11.79
Standard of proof
assault and battery …. 3.38
causation …. 12.53
negligence …. 11.97
equally consistent evidence …. 11.98
factual evidence …. 11.99
inferences …. 11.98, 11.99
no case to answer …. 11.100, 11.101
res ipsa loquitur …. 11.102–11.111
Statutory authorities see Public authorities
Statutory authority
defences to trespass …. 6.48
compensation …. 6.51
medical treatment, compelling …. 6.50
negligent performance …. 6.50
 onus of proof …. 6.49
false imprisonment …. 3.73
immigration detention …. 3.74
overview …. 6.48
trespass to land …. 4.23, 4.36, 6.48
defences to trespass …. 6.48, 6.50
onus of proof …. 6.49
police officers …. 4.37, 6.48, 6.50
wrongful acts …. 4.38, 4.39
Statutory duty see Public and statutory duties
Strict legalism doctrine …. 1.58, 1.59
Strict liability
animals …. 26.1
cattle trespass …. 26.24–26.27
dogs …. 26.16–26.23
scienter …. 26.2–26.15
breach of statutory duty …. 18.33
non-delegable duty …. 20.82, 20.83
overview …. 1.7
private nuisance …. 24.36, 24.38, 24.39
Structured settlements
definition …. 15.37
overview …. 15.37, 15.38
tax advantages …. 15.38
Suicide
intentional infliction of psychiatric injury …. 7.6
 prison authorities’ duty …. 9.88
Superannuation contributions
personal injury damages …. 15.82
Suppliers or retailers
defective products …. 9.123, 9.129
duty of care …. 9.123
Survival of causes of action
defamation …. 16.52, 22.81
wrongful death …. 16.51
collateral benefits …. 16.57
compensation to relatives, distinction …. 16.52
damages …. 16.53–16.57
dust-related diseases …. 16.55
exclusions from damages …. 16.54
exemplary damages …. 16.56
funeral costs …. 16.57
limitation period …. 16.58

T
Taxation
personal injury damages …. 15.150
interest …. 15.150
loss of earnings …. 15.85
Teachers see School authorities
Telephone calls
assault …. 3.22, 3.23
Tenants in common see also Landlord and tenant
conversion …. 5.36
trespass to land …. 4.10
possession of land …. 4.11
Text messages
assault …. 3.22
Third party insurance …. 1.54, 1.57, 9.58, 9.65
Torts
absolute rights …. 1.13, 1.14
actions on the case see Actions on the case
acts or omissions …. 1.4
fault …. 1.6
malice …. 1.9
misfeasance …. 1.4, 1.5
motive …. 1.8
nonfeasance …. 1.4
strict liability …. 1.7
classification of actions …. 2.1
contract, and …. 1.29
concurrent liability …. 1.29
differences between actions …. 1.30
criminal law, and …. 1.31
deterrence and punishment …. 1.34, 1.35
intention …. 1.33
onus of proof …. 1.32
damages see Damages
 deterrence role …. 1.35, 1.36, 1.37
evolution see Evolution of torts law
fault …. 1.6
infringement of rights …. 1.10, 1.11
absolute rights …. 1.13, 1.14
legally recognisable rights …. 1.11
qualified rights …. 1.13, 1.14, 1.15
recognition of new rights …. 1.12
types of rights …. 1.13
intention …. 1.6, 1.33
key features …. 1.3
meaning …. 1.1
other areas of law, and …. 1.28
contract …. 1.29, 1.30
criminal law …. 1.31–1.37
overview …. 1.1, 20.2
parties see Capacity to sue and be sued
qualified rights …. 1.13, 1.14
proof of harm …. 1.15
range of rights …. 1.2
remedies …. 1.19, 1.34
trespass see Trespass
Trade Practice Act see Australian Consumer Law
Trespass
actions on the case, distinction …. 2.1, 2.5, 2.25, 2.28, 14.15
Australian position …. 2.7, 2.8, 2.9, 2.10, 2.11, 2.22–2.24, 2.28, 7.10
 causal connection …. 2.2
diagram …. 2.11
direct interference …. 2.2, 2.7
fault …. 2.4, 2.6, 2.8
intention …. 2.3, 2.5, 2.10, 2.22, 2.24, 7.10
significance of distinction …. 2.22
United Kingdom …. 2.6
actionable per se …. 2.12, 2.19, 5.27
Australian position …. 2.7, 2.8, 2.9, 2.10, 2.22, 2.28
criticisms of position …. 2.22–2.24
diagram …. 2.11
cattle trespass see Animals
characteristics of actions …. 2.12
defences see Trespass defences
direct interference …. 2.2, 2.7, 2.12, 2.13, 2.14, 2.23, 7.10
criticisms of Australian position …. 2.22–2.24
example …. 2.13
lack of care …. 2.18
evolution of action …. 1.39, 2.1, 2.5, 2.12
Australian position …. 2.7, 2.8, 2.9, 2.10, 2.22
direct interference …. 2.2, 2.7
fault …. 2.4, 2.6, 2.8
highway/non-highway distinction …. 2.3, 2.4, 2.6
intention …. 2.3, 2.5, 2.6, 2.10, 2.22
United Kingdom …. 2.6
fault …. 2.4, 2.6, 2.12, 2.15, 6.1, 20.1
 lack of care …. 2.18
highway/non-highway distinction …. 2.3, 2.4
onus of proof …. 2.6, 2.7, 2.20
intention …. 2.3, 2.5, 2.6, 2.10, 2.16, 2.22, 2.23, 2.24
involuntariness, distinction …. 2.17
limitation of actions …. 14.15
nominal damages …. 15.14
onus of proof …. 2.12, 2.20, 2.23
highway/non-highway distinction …. 2.6, 2.7, 2.20
non-highway cases …. 2.23
overview …. 2.1, 2.12
privacy …. 7.22
quare trespass …. 1.39
Trespass ab initio …. 4.38, 4.39
Trespass by relation …. 4.7, 4.8
Trespass defences
abatement of nuisance …. 6.38, 25.68
assault …. 3.43, 6.33, 6.37
provocation …. 3.43, 3.44, 6.35, 6.36
Queensland …. 3.43–3.45, 6.32, 6.35
self-defence …. 6.32
battery …. 3.43, 6.37
consent …. 3.13, 6.7, 6.13
provocation …. 3.43, 3.44, 6.35
Queensland …. 3.43–3.45, 6.32, 6.35
sports participants …. 6.7
 self-defence …. 6.31, 6.32
consent …. 6.5, 6.8
battery …. 3.13, 6.7, 6.13
capacity to consent …. 6.13, 6.18–6.21, 6.24
criminal acts …. 6.9
duress …. 6.12
fraud …. 6.10, 6.11
implied consent …. 6.6, 6.7, 6.9, 6.13
medical treatment …. 6.10, 6.11, 6.14–6.26
minors …. 6.13, 6.19–6.21, 6.23
requirements for validity …. 6.8
revocation of consent …. 6.27–6.29
scope of consent …. 6.9
sports participants …. 6.7
voluntariness …. 6.10–6.12
contributory negligence …. 6.60
failure to take care …. 6.63
unintentional consequences …. 6.62
wrong, definition …. 6.61
Crown authority …. 6.59
defence of another …. 6.33
statutory defence …. 6.34
defence of property …. 6.37
disciplinary powers …. 6.52
parents …. 6.53
teachers …. 6.54
distress damage feasant …. 6.47
ex turpi causa oritur non actio …. 6.67
execution of process …. 6.57, 6.58
illegal acts …. 6.67
inevitable accident …. 6.2, 6.4
non-highway trespass …. 6.3
United Kingdom …. 6.2
insanity …. 6.65
involuntarism …. 6.66
judicial acts …. 6.55, 6.56
jus tertii …. 4.5, 6.45
loss of possession …. 6.46
mistake …. 5.26, 6.64
necessity …. 6.39
imminent threat …. 6.41, 6.43
medical necessity …. 6.44, 6.50
reasonable necessity …. 6.42
requirements …. 6.40
overview …. 6.1
provocation …. 6.35
statutory defence …. 6.35, 6.36
self-defence …. 6.30
degree of force …. 6.31
statutory defence …. 6.32
self-help …. 6.38
statutory authority …. 6.48
 compensation …. 6.51
medical treatment, compelling …. 6.50
negligent performance …. 6.50
onus of proof …. 6.49
Trespass on the case see Actions on the case
Trespass to chattels see also Conversion; Detinue
actionable per se …. 5.27, 5.28
actual possession …. 5.5, 5.7
bailment exception …. 5.8, 5.9–5.13
exceptions …. 5.8–5.13
animals …. 5.17
bailment …. 5.8, 5.9, 5.13
bailment at will …. 5.11
interference by third parties …. 5.12
revocable bailment …. 5.11, 5.12
title to sue …. 5.10, 5.12
constructive possession …. 5.5, 5.7
bailment exception …. 5.8, 5.9–5.13
exceptions …. 5.8–5.13
damages …. 5.57, 5.73, 5.77
aggravated damages …. 5.76
cost of repairs …. 5.80
damaged or destroyed goods …. 5.75, 5.79
exemplary damages …. 5.76
foreseeable consequential loss …. 5.81
interest in goods …. 5.74
 limitation of actions …. 5.102
non-economic loss …. 5.82
permanent deprivation of goods …. 5.78
sale without repair …. 5.80
defences see Trespass defences
detinue, distinction …. 5.57
direct interference …. 5.6, 5.18, 5.19
handling without authority …. 5.21, 5.22
taking or asportation …. 5.20
unauthorised use …. 5.23
elements …. 5.6
evolution of law …. 1.39
fault …. 5.6, 5.24
awareness of infringement …. 5.25
mistaken belief …. 5.26
finders …. 5.14, 5.15
during employment …. 5.15
handling without authority …. 5.21, 5.22
injunctions …. 5.97, 15.7
intention …. 5.24
limitation of actions …. 5.102
commencement of period …. 5.103
mistake …. 5.26
motor vehicles …. 5.13
‘joy-ride’ cases …. 5.50
security interests …. 5.17
 overview …. 2.12, 5.1, 5.2, 5.6
personal property securities …. 5.17
possession of goods …. 5.5
actual possession …. 5.7, 5.8
bailment …. 5.8, 5.9–5.13
constructive possession …. 5.7, 5.8
finders …. 5.14, 5.15
repossession of goods …. 5.16
statutory provisions …. 5.16, 5.17
proof of damage …. 5.28
remedies …. 5.71
damages …. 5.73–5.76, 5.77–5.82, 5.102
injunctions …. 5.97, 15.7
self-help …. 5.72
taking or asportation …. 5.20
title to sue …. 5.6, 5.7
actual possession …. 5.7, 5.8
bailment …. 5.8, 5.9–5.13
constructive possession …. 5.7, 5.8
finders …. 5.14, 5.15
franchise owners …. 5.8
personal representatives …. 5.8
statutory provisions …. 5.16, 5.17
trustees …. 5.8
unauthorised use …. 5.23
Trespass to land
abatement of nuisance …. 6.38, 25.68
absolute rights …. 1.14
airspace …. 4.19, 4.20, 4.44
balancing of rights …. 4.19
civil liability legislation …. 4.21
naturally caused projections …. 4.22
transient interference …. 4.44, 4.45
animals …. 4.43, 26.1, 26.28
cattle trespass …. 26.25
authorised by law …. 4.23, 4.36, 6.48
negligent performance …. 6.50
onus of proof …. 6.49
police officers …. 4.37, 6.48, 6.50
wrongful acts …. 4.38, 4.39
continuing trespass …. 4.46
injunctions …. 4.67
limitation of actions …. 14.13
subsequent transferees …. 4.47
co-owners …. 4.10
possession of land …. 4.11
damages …. 4.51, 4.54, 4.70
aggravated damages …. 4.61, 4.63, 4.64
benefit from trespass …. 4.53
compensatory damages …. 4.54–4.60
consequential losses …. 4.59
cost of reinstatement …. 4.57, 4.58
 exemplary damages …. 4.61, 4.62
material damage …. 4.55
mental trauma …. 4.64
no damage to land …. 4.52
nominal damages …. 4.52
severance of chattels …. 4.60
value of land …. 4.56, 4.57, 4.58
defences see Trespass defences
direct interference …. 1.14, 4.15
easements …. 4.12
elements …. 4.3
encroachment …. 4.70
evolution of action …. 1.39, 4.1
express licence …. 4.23, 4.24
different purpose …. 4.25
mixed purposes …. 4.26
revocation or withdrawal …. 4.31
fault …. 4.3, 4.40
implied licence …. 4.23, 4.27, 6.6, 6.9
bona fide entrants …. 4.29
legitimate purposes …. 4.29, 4.30
police …. 4.28, 6.28
revocation or withdrawal …. 4.31, 4.33, 6.28
injunctions …. 1.19, 4.65, 4.66, 15.7
continuing trespass …. 4.67
past and complete trespass …. 4.68
intention …. 4.40
interference with land …. 4.2, 4.14, 4.16
actionable interference …. 4.3, 4.14
airspace …. 4.19–4.22, 4.44, 4.45
animals …. 4.43
continuing trespass …. 4.46, 4.47
direct interference …. 1.14, 4.15
examples …. 4.41–4.47
land, concept …. 4.16–4.22
placing or leaving objects on land …. 4.42
subsoil …. 4.17, 4.18
unauthorised interference …. 4.23–4.39
land, concept …. 4.16
airspace …. 4.19–4.22, 4.44, 4.45
subsoil …. 4.17, 4.18
lessors …. 4.6
trespass by relation …. 4.7, 4.8
licensees …. 4.9
limitation of actions …. 4.71, 14.13
mesne profits …. 4.69
overview …. 1.14, 2.12, 4.1, 4.2
placing or leaving objects on land …. 4.42
police officers …. 4.28, 6.48
authorised by law …. 4.37, 6.48, 6.50
revocation of consent …. 4.35, 6.28
possession of land …. 1.14, 4.4
 co-owners …. 4.11
lawfulness of possession …. 4.5
lessors …. 4.6, 4.7
licensees …. 4.9
purchasers under sale contract …. 4.13
squatters …. 4.5
tenants …. 4.6, 4.7
trespass by relation …. 4.7, 4.8
profits a prendre …. 4.12
proof of damage …. 4.2
purchasers under sale contract …. 4.13
remedies …. 4.48
damages …. 4.51–4.64, 4.70
encroachment …. 4.70
injunctions …. 4.65–4.68, 15.7
mesne profits …. 4.69
self-help …. 4.49, 4.50
statutory relief …. 4.70
revocation or withdrawal of licence …. 4.31, 4.38, 4.41, 6.28
communication …. 4.32
implied licence …. 4.33, 6.28
notice …. 4.32, 4.33
police offices …. 4.35, 6.28
prior communication …. 4.33
reasonable time to leave …. 4.34, 6.28
self-help …. 4.49, 4.50
 reasonable force …. 4.50
statutory relief …. 4.70
subsoil …. 4.17, 4.18
mining rights …. 4.18
tenants …. 4.6
trespass by relation …. 4.7, 4.8
title to sue …. 4.3, 4.4, 4.5
co-owners …. 4.10, 4.11
easements …. 4.12
lessors …. 4.6, 4.7, 4.8
licensees …. 4.9
profits a prendre …. 4.12
purchasers under sale contract …. 4.13
tenants …. 4.6, 4.7, 4.8
trespass by relation …. 4.7, 4.8
trespass ab initio …. 4.38, 4.39
trespass by relation …. 4.7, 4.8
unauthorised interference …. 4.23, 4.41
authorised by law …. 4.36, 4.37, 4.38, 4.39
examples …. 4.41–4.47
express licence …. 4.24–4.26
implied licence …. 4.27–4.30
revocation or withdrawal of licence …. 4.31–4.35, 4.38, 4.41
trespass ab initio …. 4.38, 4.39
Trespass to person see also Assault; Battery; False imprisonment
animals …. 26.28
 available actions …. 3.2
child sexual abuse …. 14.43
damages …. 3.75, 3.77, 3.84
aggravated damages …. 3.79, 3.80–3.82, 3.84
civil liability legislation …. 3.78
compensatory damages …. 3.77, 3.78, 3.84
exemplary damages …. 3.79, 3.83, 3.84
no loss suffered …. 3.76
nominal damages …. 3.76
defences see Trespass defences
evolution of law …. 1.39
injunctions …. 3.85, 15.11
limitation of actions …. 3.88
child sexual abuse …. 14.43
overview …. 2.12, 3.1, 3.2, 7.1
remedies …. 3.75, 3.87
damages …. 3.75–3.84
injunctions …. 3.85, 15.11
limitation of actions …. 3.88
protection orders …. 3.86
Trespass to personal property
constructive possession …. 5.5
contributory negligence …. 6.63
conversion see Conversion
defences …. 6.45
distress damage feasant …. 6.47
 jus tertii …. 6.45
loss of possession …. 6.46
detinue see Detinue
excluded goods …. 5.3
real property …. 5.4
fixtures …. 5.4
intangible property …. 5.3
overview …. 5.1
personal property …. 5.2
meaning …. 5.2
possession of goods …. 5.5
reversionary owners …. 5.70
rights to possession …. 5.5
trespass to chattels see Trespass to chattels
Trover …. 5.29

U
Unborn child see also Wrongful birth
medical professionals’ duty …. 9.98
motor vehicle driver’s duty …. 9.59
Unfair competition see Passing off
Unlawful interference with trade or business interests see
Interference with business interests

V
Vicarious liability see also Non-delegable duty
breach of statutory duty …. 18.23
fault, and …. 20.2
historical background …. 20.5
indemnities …. 20.85
joint tortfeasors …. 21.5
malice …. 23.56, 23.57
fair comment defence …. 23.90
motor vehicle owners …. 20.57, 20.58
hire care firms …. 20.59
legislation …. 20.60
rebuttal of presumption …. 20.59
New Zealand …. 20.17
overview …. 20.2, 20.3, 20.4, 20.85
partnerships …. 20.4
policy grounds supporting …. 20.5
principal and agent …. 20.50
agent, meaning …. 20.51
agent or contractor …. 20.56
express authorisation …. 20.54
holding out …. 20.55
motor vehicle owners …. 20.57–20.60
ostensible authority …. 20.52, 20.55
scope of authority …. 20.52, 20.53
relationship between parties …. 20.4
statutory liability …. 20.4
voluntary assumption of risk, and …. 13.57
Vicarious liability of employers
ad hoc service …. 20.25
assault by employee …. 20.37
borrowed employees …. 20.23
onus of transfer …. 20.23, 20.24
transfer of control …. 20.24
breach of statutory duty …. 18.23, 18.38
Canada …. 20.17, 20.49
child sexual abuse …. 20.40, 20.46
appropriate test …. 20.43, 20.44, 20.46
court’s considerations …. 20.46
judicial comments …. 20.45
Royal Commission …. 20.40, 20.47, 20.81
schools …. 20.41, 20.42, 20.44, 20.45, 20.46, 20.47, 20.81
uncertainty …. 20.41
clergy …. 20.26
Commonwealth …. 20.19
police …. 20.20
public servants …. 20.19, 20.21, 20.22
course of employment …. 20.7, 20.27, 20.28
express employer prohibitions …. 20.35, 20.36
frolic doctrine …. 20.30–20.32
intentional torts …. 20.37–20.49
linking of acts outside employment …. 20.29
question of fact …. 20.28
wrongful act authorised by employer …. 20.33
 wrongful mode …. 20.33, 20.34
defence forces …. 20.19
employee actions …. 9.29
employee or contractor …. 20.8, 20.9, 20.17
control test …. 20.11, 20.13, 20.24
hospital staff …. 20.18
multi-facet test …. 20.14–20.17
organisation test …. 20.12, 20.13
relevant factors …. 20.16, 20.17
terms describing relationship …. 20.9
tests to determine …. 20.10–20.17
establishing an action …. 20.7
express employer prohibitions …. 20.35, 20.36
fraud of employee …. 20.37
frolic doctrine …. 20.30, 20.32
extent of deviation …. 20.31
purpose of deviation …. 20.31
gratuitous service …. 20.25
historical background …. 20.6
hospital staff …. 20.18
indemnities …. 20.85, 20.86, 21.25, 21.27
Lister v Romford Ice …. 20.86, 20.87, 21.25, 21.27
statutory modification …. 20.88, 21.26
intentional torts …. 20.37
appropriate test …. 20.43, 20.44
assault by employee …. 20.37
 child sexual abuse …. 20.40–20.47
fraud of employee …. 20.37
misappropriated funds …. 20.39
motive of employee …. 20.38
ostensible authority …. 20.39
other jurisdictions …. 20.49
scope of employment …. 20.37
security guards …. 20.48
joint tortfeasors …. 21.5
overview …. 20.6
police …. 20.20, 20.88
statutory reform …. 20.20, 20.88
public servants …. 20.19, 20.21
independent discretion …. 20.21, 20.22
reform proposals …. 20.22
security guards …. 20.48
United Kingdom …. 20.17, 20.49
Victims of crime
compensation legislation …. 1.48, 3.34
Volenti non fit injuria
animals …. 26.33
cattle trespass …. 26.27
dangerous animals …. 26.12, 26.13
dogs …. 26.22
avoidance of risk …. 13.56
belief that risk would eventuate …. 13.52
breach of statutory duty …. 18.38
dangerous recreational activities …. 13.67, 13.70
definition …. 13.67
obvious risk …. 13.68, 13.69, 13.70
relevant principles …. 13.69
significant degree of risk …. 13.69
employer’s duty to employees …. 9.28, 13.49
establishing defence …. 13.50
full knowledge of risk …. 13.50, 13.51, 13.52
avoidance of risk …. 13.56
extent of risk …. 13.55
mere knowledge …. 13.51, 13.52
nature of risk …. 13.55
obvious risk …. 13.53, 13.54
subjective test …. 13.51
historical background …. 13.49
implied acceptance …. 13.64
motor vehicle accidents …. 13.65
sport and recreational activities …. 13.66–13.70
intoxication …. 13.61
defendant intoxicated …. 13.63
onus of proof …. 13.62
plaintiff intoxicated …. 13.62
motor vehicle accidents …. 13.65
defective vehicles …. 13.65
implied acceptance …. 13.65
 inexperienced drivers …. 13.65
intoxication …. 13.61, 13.62, 13.63
nuisance …. 25.101
obvious risk …. 13.53, 13.62
dangerous recreational activities …. 13.68, 13.69, 13.70
knowledge and experience of plaintiff …. 13.54
onus of proof …. 13.53
statutory presumption …. 13.53
overview …. 13.1, 13.48, 25.101
rescuers …. 13.98
sport and recreational activities …. 13.66
dangerous recreational activities …. 13.67–13.70
voluntary acceptance of risk …. 13.50, 13.57, 13.58
age of plaintiff …. 13.58
characteristics of plaintiff …. 13.58
implied acceptance …. 13.64–13.70
intoxication …. 13.61–13.63
legal and physical risk …. 13.57
other risk causing injury …. 13.60
vicarious liability …. 13.57
Voluntary assumption of risk see Volenti non fit injuria
Volunteers
immunity from liability …. 13.102, 13.103
overview …. 13.102

W
Workers’ compensation see also Employer’s duty to employees;
Occupational health and safety
advantages …. 9.55
damages, and …. 15.137
exemplary damages …. 15.22
excluded injuries …. 9.55
historical development …. 1.46, 9.28, 9.53
national scheme proposal …. 9.56
overview …. 1.46, 9.28, 9.29, 9.30, 9.54
periodic payments …. 15.37
standardisation of benefits …. 9.54
statutory schemes …. 9.54, 9.56
advantages …. 9.55
Wrongful birth
medical professionals’ duty …. 9.99
mitigation of damage …. 15.41
overview …. 12.13
recognition of damage …. 12.13
Wrongful conception
damages …. 8.6, 12.14, 15.28, 15.41
overview …. 12.14
recognition of damage …. 12.14
Wrongful death
assessment of damages …. 16.32
contributory negligence …. 16.44
deceased’s estate …. 16.39–16.41
 extent of dependency …. 16.34
future events …. 16.37
indemnity principle …. 16.35–16.37
interest …. 16.47
jointly owned assets …. 16.41
matrimonial home …. 16.40
motor vehicle accidents …. 16.46
new relationships …. 16.38
other actions …. 16.43
pecuniary support from deceased …. 16.33
period of dependency …. 16.34
reasonable expectation of support …. 16.36
relevant factors …. 16.33, 16.34
specific payments …. 16.42
statutory limitations …. 16.45, 16.46
survival of causes of action …. 16.53–16.57
breach of contract …. 16.1, 16.4
causation …. 16.11
‘egg-shell skull’ rule …. 16.14
reasonable foreseeability …. 16.12, 16.15
remoteness of damage …. 16.11, 16.13
child deceased …. 16.21
common law …. 16.1
compensation to relatives …. 16.2, 16.3, 16.26
assessment of damages …. 16.32–16.46
causation …. 16.11–16.15
 dependants …. 16.16–16.19
dependency requirement …. 16.20–16.23
establishing an action …. 16.6
executor or administrator …. 16.24, 16.25
interest …. 16.47
legislation …. 16.3
limitation periods …. 16.48–16.50
non-pecuniary loss …. 16.28–16.31
pecuniary loss …. 16.27
Queensland …. 16.5
right of action …. 16.7–16.10
solatium …. 16.30
statutory limitations …. 16.45, 16.46
survival of causes of action, distinction …. 16.52
types of losses …. 16.26
wrongful act or neglect, meaning …. 16.4
contributory negligence …. 16.44
dependants …. 16.16, 16.19
children …. 16.18
de facto spouse …. 16.17
parents …. 16.18
persons in loco parentis …. 16.18
same-sex spouse …. 16.17
spouse …. 16.17
dependency requirement …. 16.20
child deceased …. 16.21
 familial relationships …. 16.23
reasonable expectation of benefit …. 16.22
‘egg-shell skull’ rule …. 16.14
executor or administrator …. 16.24, 16.25
establishing an action …. 16.6
historical background …. 16.1, 16.3
action personalis moritur cum persona …. 16.1
limitation of actions …. 16.48, 16.50
dust-related conditions …. 16.49
survival of actions …. 16.58
non-pecuniary loss …. 16.28
gratuitous services …. 16.29
Griffiths v Kerkemeyer …. 16.29
loss of consortium …. 16.31
loss of services …. 16.28, 16.29
solatium …. 16.30
overview …. 16.1, 16.2
reasonable foreseeability …. 16.12, 16.15
remoteness of damage …. 16.11, 16.13
right of action …. 16.7, 16.24
disentitling events …. 16.8
executor or administrator …. 16.25
Northern Territory …. 16.9
procedural requirements …. 16.10
survival of causes of action …. 16.51, 16.52
collateral benefits …. 16.57
 compensation to relatives, distinction …. 16.52
damages …. 16.53–16.57
dust-related diseases …. 16.55
exclusions from damages …. 16.54
exemplary damages …. 16.56
funeral costs …. 16.57
legislation …. 16.51
limitation period …. 16.58
Wrongful life
overview …. 12.11
recognition of damage …. 12.12