LAW OF TORTS
WEEKEND LECTURE 2B
Greg Young
Contact: greg.young@lawyer.com
NEGLIGENCE
Defences
Remedies – Damages Personal Injury/Death
DEFAMATION
NUISANCE
DEFENCES TO ACTIONS IN
NEGLIGENCE
COMMON LAW
• Contributory negligence
• Voluntary assumption of risk
• Illegality
CIVIL LIABILITY ACT
• Pt 1A
- ss5F to I: Assumption of Risk
- ss5R to T: Contributory Negligence
• Pt 5
- s45 “Highway Immunity” restored
• Pt 6 Intoxication
• Pt 7 Self-Defence & Recovery by Criminals
Contributory Negligence: The
nature of the P’s conduct
• To plead the defence D bears the onus of proof
and must prove the requisite standard of care
that has been breached by P.
• It would seem that courts apply the standard
leniently to P, and whether P’s action by reason
of D’s negligent conduct constitutes an
unreasonable risk to him/herself will depend on
the circumstances of each case
The Substance of
Apportionment Legislation
• Where any person suffers damage as the result
partly of his/her own fault and partly of the fault
of any other persons, a claim in respect of that
damage shall not be defeated by reason of the
fault of the person suffering the damage, but
the damages recoverable in respect thereof
shall be reduced to such extent as the court
thinks just and equitable having regard to the
claimant’s share in the responsibility for the
damage (Law Reform (Miscellaneous) Act 1965
(NSW) s10
Motor Accidents Compensation
Act 1999 s 138
• A finding of contributory negligence must be
made in the following cases:
– where the injured person or deceased person has
been convicted of an alcohol or other drug-related
offence in relation to the motor accident…
– Where the driver’s ability to control vehicle was
impaired by alcohol and the P as an adult voluntary
passenger was/ought to have been aware of this…
– Where the injured party was not wearing set
belt/protective helmet, and was required by law to
wear such belt/helmet
Civil Liability Act 2002
• s5S – a court may determine a reduction
of 100% if it is just and equitable to do so
• s5T – a court may reduce a claim for
damages under the Compensation to
Relatives Act 1897 for contributory
negligence of the deceased
• S50(4) – a presumption of contributory
negligence of 25% if the plaintiff was
intoxicated at the time of injury
Voluntary Assumption of Risk
• In general where P voluntarily assumes the risk
of a particular situation, she/he may not be able
to maintain an action against D for negligence
in relation to that situation
• The elements
– P must have perceived the danger
– P must have fully appreciated the danger
– P must have voluntarily accepted the risk
Voluntary Assumption of Risk
• Scanlon v American Cigarette Company
Overseas Pty Ltd (No 3) [1987] VR 289 (P
contracted lung cancer by allegedly smoking D’s
cigarettes, D sued for negligently and misleadingly
advertising cigarettes)
– If it is to be the case that the smoking of the said
cigarettes involved risk of injury as alleged… the P
knew or ought to have known that the smoking of the
said cigarettes involved such risk and the P accepted,
consented to and voluntarily assumed the same
(extract from D’s statement of defence)
VAR in the Work Place
• Smith v Baker & Sons P (injured by falling rock while
working a drill, fellow workers had complained of the
danger previously, issue whether P voluntarily
accepted the risk, held defence not applicable)
• The defence is not constituted by knowledge of the
danger and acquiescence, but by an agreement to
run the risk and to waive your rights to compensation
Physical and Legal Risk
• By engaging in a sport or pastime the
participants may be held to have accepted
the risk which are inherent in the sport…
but this does not eliminate all duty of care
of the one participant to the other
Civil Liability Act 2002
Assumption of Risk
• s5F – “obvious risk” defined
• s5G – injured person presumed to be
aware of obvious risk unless proven
otherwise
• s5H – no proactive duty to warn of obvious
risk in certain circumstances
• s5I – no liability for materialisation of
“inherent risk” (as defined)
Illegality
• There is no general principle of law that a
person who is engaged in some unlawful
act is to be disabled from complaining of
injury done to him by other persons, either
deliberately or accidentally he does not
become a caput lupinum (an outlaw) ( per
Latham CJ: Henwood v Municipal
Tramsways Trust
The Test to Disentitle the
Defence
• In each case the question must be whether it is
part of the purpose of the law against which the
the P has offended to disentitle a person doing
the prohibited act from complaining of the other
party’s act or default
• Italiano v Barbaro (1993) 114 ALR 21(injury
sustained while parties were in the process of
looking for a spot to stage accident; Neaves &
Whitlam JJ not “appropriate” to fix a standard of
care in the circumstances )
Civil Liability Act 2002
Illegality
• S54 – criminals not to be awarded
damages if:
(a) on the balance of probabilities, the
conduct constitutes a “serious offence”,
and
(b) that conduct contributed materially to
the risk of death, injury or damage.
Negligence - Remedies
ASSESSMENT OF DAMAGES:
PERSONAL INJURIES
RECOVERABLE HEADS OF
LOSS: PERSONAL INJURY
• Windeyer J in: Teubner v Humble (1963) 108 CLR
491
– Three ways in which personal injury can give rise to
damages:
• destruction or reduction (of existing mental or
physical capacity)
• new needs (which did not exist prior to the injury)
• production of pain (and suffering)
• These categories include:
– loss of earning capacity
– the cost of medical and nursing care (past and future)
– physical pain
– mental anguish
DAMAGES: PERSONAL
INJURY
• SPECIAL DAMAGES
– out of pocket expenses
– loss of income up to the
date of verdict less any
deductions* (This may be
included in loss of earning
capacity)
• GENERAL DAMAGES
– future medical and
hospital expenses
– future economic loss
– loss of amenities and
enjoyment of life
– Pain and suffering
– loss of expectation of life
OUT-OF-POCKET EXPENSES
• Not affected by Pt 2 of the Civil Liability Act
• In general this includes all expenses incurred by
the plaintiff on account of the breach up to the date
of verdict (Paff v Speed (1961) 105 CLR 549, 5589)
–
–
–
–
medical expenses
surgical fees
Transportation
Special needs etc
LOSS OF INCOME
• [See ss.12 & 14 Civil Liability Act]
• Loss of actual pay plus any overtime
– less any savings to be made as a result of the
injury (eg cost of transport to work)
– less any boarding and lodging savings eg for
being in hospital (Sharman v Evans (1977) 138
CLR 563
– less allowance for income tax deductions
(Cullen v Trappell (1980) 146 CLR 1)
FUTURE (HOSPITAL AND
MEDICAL/CARE) EXPENSES
• P is entitled to recover the future cost of
hospital, medical, nursing and home care.
• P is entitled to recovery of such cost even
where the care (nursing/home care) is
provided gratuitously by a spouse or relative
Griffiths v Kerkemeyer (1977) 139 CLR 161
• The damages for such expenses are
calculated by reference to the market cost of
the services
LOSS OF EARNING
CAPACITY
• The onus is on P to provide evidence of real
possibility of the potential/capacity yet unexploited
that would have been exploited in the future but for
the injury suffered (Mann v Elbourn (1973) 8 SASR
298 ( police officer who was aspiring to be a lawyer)
• Where D maintains that P retains the capacity to
earn, the onus is on D to provide the relevant
evidence and the range of work open to P
NON-ECONOMIC LOSS
• Non-economic loss is traditionally claimed
under three main heads of damage:
– Pain and suffering
– loss of amenities
– loss of expectation of life
• "is not the prospect of length of days, but the
prospect of a predominantly happy life . . . The ups
and downs of life, its pains and sorrows as well as
its joys and pleasures . . . have to be allowed for in
the estimate" Benham v. Gambling (1941) AC 157: (p
166 )
ASSESSMENT OF NONECONOMIC LOSS
• There is no acceptable criteria for assessing what is fair
compensation for a particular non-economic loss
• (Sharman v Evans) – P was 20 yrs old injured in MVA rendered
a quadraplegic:
– Her ability to breathe, eat, speak, move, control her
excretions, have social and sexual intercourse, bear or
look after children is either greatly impaired or
destroyed. She also went through the ordeal of
releasing the young man from his promise to marry
her…The estimate in respect of pain and suffering is
seldom adequate( Murphy J)
– She has suffered and will continue to suffer for the rest
of her life in her left shoulder, another of her few
remaining sensory areas…Pain and suffering and loss
of amenities of life is a head of damages which is
particularly difficult to assess (Gibbs and Stephen JJ)
Civil Liability Act 2002
Part 2 Personal Injury Damages
• Received assent on 18 June 2002
• Section 11A:
(1) does not apply to claims excluded by
Section 3B (eg. Damages for dust diseases,
use of tobacco products, workers’
compensation…)
(2) Part 2 applies regardless of whether the
claim is brought in tort, contract, statute or
otherwise
(3) A court cannot award damages, or
interest on damages, contrary to Part 2.
Civil Liability Act 2002
• Pt 2 Non-economic loss:
- No damages for non-economic loss unless assessed at
15% of a most extreme case (eg. 15% = 1% or $3,500,
16% = 1.5% or $5,250, …26% = 8% or $28,000, …33%
= $115,500, …100% = $350,000): Section 16(1) & (3)
- Maximum non-economic loss = $350,000: Section 16(2)
- Maximum for non-economic loss indexed: Section 17
- Courts/parties may refer to other awards of noneconomic loss in earlier court decisions: Section 17A
Civil Liability Act 2002
Exemplary, punitive & aggravated damages:
•
A court cannot award exemplary, punitive
or aggravated damages in an action for
personal injury resulting from negligence
: s21
Civil Liability Act 2002
•
-
-
Pre-judgment Interest:
No interest payable on damages for noneconomic loss or gratuitous attendant care:
s18(1)
If interest is awarded (eg. Past economic loss),
the “relevant interest rate” is the
Commonwealth Govt 10-year benchmark bond
rate: s18(4)
Civil Liability Act 2002
• Economic Loss:
- Maximum for gross loss loss of earnings = 3 times
average weekly earnings: s12
- 5% discount rate for future economic loss: s14
• Gratuitous Attendant Care:
- No damages awarded if services provided:
(a) for less than 6 hours per week, and
(b) for less than 6 months: s15(3)
Geaghan v D’Aubert [2002] NSWCA 260
Negligence - Remedies
INJURY TO RELATIONAL
INTERESTS
THE SCOPE OF THE
ACTIONS
Death
Dependents may sue for loss
actual or expected benefits
Loss of services
Parent/master may sue for
wrongful deprivation of the
Services of a child/servant
Loss of consortium
An action that permitted
the husband to sue
for wrongful deprivation of the
wife’s consortium
COMMON LAW AND THE
SURVIVAL OF ACTIONS
• In the event of death from a wrongful act there
are two potential plaintiffs:
– the estate; and
– dependants
• Traditionally in Common Law, a personal
action ‘died’ with the victim
The Estate: Lord Campbell’s
Act (1846)
• The Act modified the Common Law rule in
England.
– The effect of the legislation was to give to the
estate the action which the deceased would
have had she or he survived
• Australian States and Territories have
adopted similar statutes with modifications
SURVIVAL OF ACTIONS: NSW
• Law Reform (Miscellaneous Provisions) Act
(NSW) 1944 Part 2 Survival of causes of Action
After Death
– Subject to the provisions of this section, on death of
any person …all causes of action subsisting against
or vested in him shall survive against, or, as the case
may be, for the benefit of, his estate;...
QUALIFICATIONS
• Section 2(2) of the Law Reform (Miscellaneous
Provisions) Act (NSW) 1944 does not allow for
recovery of the following types of damages:
– exemplary damages
– loss of earning capacity/loss of future probable
earnings
– loss of expectation of life
– pain and suffering
• Incidental losses or gains except for funeral
expenses will not affect the quantum of damages
HEADS OF DAMAGES
• ALLOWABLE DAMAGES
– Needs created;
reasonable expenses
incurred before death
– Reasonable funeral
expenses
• NON-ALLOWABLE
– loss of earning
capacity
– Non-economic loss
DEPENDENTS’ CLAIMS
• Compensation to Relatives Act 1897 (NSW)
– 3(1) Whenever 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 ,
then and in every such case the person who would
have been liable if death had not ensued shall be
liable to an action for damages
DEPENDANTS: STANDING
• Compensation to Relatives Act 1897 (NSW) S4:
– spouses
– parents (including those in loco parentis)
– de factos Compensation to Relatives Act (De facto
Relationships )Amendment Act 1984
– children (including step children)
– siblings (half and full)
SCOPE OF LOSS
• Public Trustee v Zoanetti (1945) 70 CLR 266
– ‘The basis for the action is not what has been
called solatium, that is to say, damages given for
injured feelings or on the ground of sentiment,
but damages based on compensation for
pecuniary loss’
– What must be ascertained is whether any and
what loss has been sustained by the relatives of
the deceased … (Dixon J , 279)
HEADS OF DAMAGES
• Loss of economic support/loss of
reasonable expectation of financial benefit
• Loss of domestic services
LOSS OF REASONABLE EXPECTATION
OF FINANCIAL BENEFIT
• The benefit is a ‘chance’ that is lost. P must therefore
establish such ‘chance’ in accordance with the principles of
reasonable certainty. (Taff Vale Railway Co v Jenkins
(1913)AC 1, 7
– All that is necessary is that a reasonable expectation of pecuniary
benefit should be entertained by the person who sues. It is quite
true that the existence of this expectation is an inference of fact
from which the inference can be reasonably drawn...
• It may be immaterial that the deceased was unemployed
prior to his/her death
• In the case of a young child, there has to be evidence
sufficient to establish the potential to provide the benefit
DOMESTIC SERVICES
• Nguyen v Nguyen (1990) CLR 245 (held gratuitous services
of deceased spouse for the benefit of husband & children had a monetary
value)
– The claim: ‘loss of the deceased’s domestic capacity being
the value of services such as child care, cooking, washing,
ironing and cleaning’
• The definition of ‘services’ is broad:
– ‘There is no reason why ‘services’ in this context should be
given an unduly narrow construction, as if a wife is no more
than a house keeper’ Per Dawson, Toohey and McHugh JJ
in Nguyen v Nguyen)
– Where the services are likely to to be replaced as a result of
remarriage, the reasonable prospect of that remarriage will
serve to reduce the compensation to which the plaintiff will
be entitled … because the P’s loss is thereby directly
reduced ( Per Dawson, Toohey and McHugh JJ in Nguyen v
Nguyen)
LOSS OF CONSORTIUM
• The traditional common position permitted a husband
to maintain an action under three heads for loss of
consortium (actio per quod consortium amisit)
– Loss of the wife’s company including sexual companionship
– Loss of her domestic services
– Medical and other expenses incurred as a result of the injury
to the wife
• In Qld & SA the action to available to both spouses; in
NSW, Tas and WA, the action has been abolished
LOSS OF SERVICES
• Traditionally the common law allowed a cause of
action (actio per quod servitium amisit) for the
loss of services of:
– Children
– Servants
• While the action for loss of services in the case
of the child is rare today, action for loss of
services from a servant remain a feature of the
common law
LOSS OF SERVICES:
SERVANTS
• The action was traditionally restricted to menial services
offered by the servant. In Australia there is no restriction
based on the types of services as such
• Heads of damage:
– Loss of profits
– Payment to the servant of sick-pay or pension
– Out of pocket expenses such as Workers Comp or medical
expenses.
• The Motor Accidents Comp. Act 1999 excludes
compensation for loss of services s 142
• The Employees Liability Act 1991 excludes against
employees by employers
• P cannot claim for the death of a servant (Sawn v Williams)
Cattanach v Melchior [2003] HCA
38 (16 July 2003)
Facts
• Dec ’67 – Mrs M underwent an appendectomy at
Balmain Hospital, Sydney as a 15 year old. Her
right ovary was filled with a blood clot and
removed. However, her left and right fallopian
tubes were unaffected.
• 1984 – Mr & Mrs M married
• 1985 & 88 – Two daughters were born
• Nov ’91- Mrs M 1st saw Dr C (gynaecologist),
who formed the view that the right ovary and
fallopian tube were removed in 1967
Cattanach v Melchior [2003] HCA
38 (16 July 2003)
Facts
• Mar ‘92 – Dr C performed a laparoscopic tubal ligation at
Redland Hospital, Brisbane. He found “…No right tube or
ovary visible. Consistent with patient’s history of right
salpingo-oophorectomy...”
- In fact, the right fallopian tube was obscured by bowel
adhesions so only the left fallopian tube was clipped.
- Dr C did not see Mrs M again.
• Nov ’96 – Mrs M fell pregnant at age 44 years.
• May ‘97 – Healthy son, Jordan, was born
- Experts representatives of the parties were present at
the birth and found the right fallopian tube was present
Cattanach v Melchior [2003] HCA
38 (16 July 2003)
Facts
• Sept ‘97 – Mrs M underwent an hysterosalpingogram, a
procedure in which dye is inserted into the uterus and
the results are observed on x-ray.
- The results showed the right fallopian tube was patent.
- Consensus of medical opinion was that conception
occurred as an ovum transmigrated from the left ovary to
the right fallopian tube
• Trail judge (Holmes J) found Dr C was negligent in failing
to adequately inform Mrs M of the possibility that the
procedure would fail so as to give her the option of
considering further investigation by way of
hysterosalpingogram
Trial Judge’s Award (unchallenged on
appeal)
Mrs M’s Damages:
Pain & Suffering and loss of amenities
$30,000.00
Interest on $20,000 for 3.5 yrs @ 2%
1,500.00
Past eco loss
3,003.00
Interest for 3.5 yrs @ 5%
525.52
Future eco loss
10,000.00
Past Griffiths v Kerkemeyer
13,300.00
Interest for 3 yrs @ 2%
851.12
Future G v K
28,476.00
Past special damages
15,473.06
Interest on special damages
543.69
$103,672.39
Trial Judge’s Award (unchallenged on
appeal)
Mr M’s Damages:
At paragraph 15, Gleeson CJ noted that Holmes J applied the
“blessing argument” to reduce the claim for loss of consortium but no
reduction was made for the subject of the appeal.
Loss of consortium (not available in
NSW)
$3,000.00
$3,000.00
Trial Judge’s Award (subject of appeal)
Mrs & Mr M’s Damages:
At paragraph 20, Gleeson CJ noted Holmes J accepted a schedule prepared
by Mr M setting out past and anticipated costs of raising Jordan to age 18
years. “For the early years, about half of the estimated expenditure was on
food. In the later years, that proportion dropped to about one third. Other items
included clothing, medical and pharmaceutical expenses, child care, travelling
to and from school, birthday and Christmas presents each year, and
entertainment... It included items of reasonable discretionary expenditure...”
All Justices of the High Court considered the sums claimed by Mr M were
relatively low but Hayne and Heydon JJ in separate judgments posed the
question at paragraphs 208 and 306 respectively whether the wealthy should
awarded higher compensation.
Past cost of raising Jordan
Interest for 3 yrs @ 5%
Future costs of raising Jordan to age 18
yrs
$17,698.80
2,655.00
84,895.53
$105,249.33
Cattanach v Melchior [2003] HCA
38 (16 July 2003)
Appeal – Limited to the costs of raising and
maintaining Jordan
• Qld Court of Appeal – Dr C’s appeal dismissed
(McMurdo P and Davies JA, Thomas JA
dissenting)
• High Court of Australia – Dr C’s appeal
dismissed (majority of McHugh & Gummow JJ,
Kirby J and Callinan J, with Gleeson CJ, Hayne
J and Heydon J dissenting)
Cattanach v Melchior [2003] HCA
38 (16 July 2003)
High Court – Summary of dissenting views
• Gleeson CJ – claim involves moral, natural and legal obligations so there is no
clear reason why such a claim should cease at 18 years
- [para 38] “…It is a human relationship, regarded by domestic law and by international
standards as fundamental to society. To seek to assign an economic value to the relationship,
either positive or negative, in the ordinary case, is neither reasonable nor possible. ”
• Hayne J – [para 258] “...what is seen to be the desirable paradigm of family
relationships in which the child and parent are of mutual support of each other. In that sense, and
only in that sense, the law might be seen as concluding that every child is a blessing.”
- [para 261] “...the law should not permit the commodification of the child...”
• Heydon J – [para 356] “Human life is invaluable in the sense that it is incapable of
valuation. It has no financial worth which is capable of estimation... To calculate them in money
terms and then permit their recovery in relation to the performance of the duty is to engage in an
activity lacking any meaningful correspondence with the duty...”
Cattanach v Melchior [2003] HCA
38 (16 July 2003)
High Court – Summary of the majority
• McHugh & Gummow JJ – [para 68] “The unplanned child is not the
harm for which recompense is sought…it is the burden of the legal and moral
responsibilities which arise by reason of the birth of the child that is in contention…
What was wrongful in this case was not the birth of the third child to Mr & Mrs M but
the negligence of Dr C. ”
Kirby J – [para 144] “...for a very long time judges and juries have been
obliged to put money values on equally nebulous items such as pain and suffering
and loss of reputation. Calculation of the cost of rearing a child is, by comparison,
relatively straightforward.”
- [para 145] “The notion that a child might be hurt emotionally following the later
discovery that parents had sought sterilization and had gone to court... Is
unconvincing... In the real world, cases of this kind are about who must bear the
economic costs of the upkeep of the child. Money, not love or the preservation of the
family unit, is what is in issue.”
Callinan J – [para 295] “One strong contrary argument against the
appellants which I accept, is that a holding for them here would be tantamount to the
conferral of a new form of immunity upon doctors and hospital authorities.”
Torts
Defamation
What is defamatory?
• “A defamatory statement may be defined as one
which tends to lower a person in the estimation
of his fellow men by making them think the less
of him. Frequently, it takes the form of an
imputation calculated to bring the plaintiff ‘into
hatred, contempt or ridicule’ (Parke’s B definition in
Parmiter v Coupland (1840) 6 M&W 105, 108), whether by direct
statement, irony, caricature or any other means;
but it is not necessary that the words have the
tendency to excite feelings of disapprobation,
provided they cause him to be shunned and
avoided by his fellows.” J.G. Fleming
Slander and Libel
• Slander – A defamatory statement in oral
or transient form actionable upon proof of
damage.
• Libel – A defamatory statement in written
form or other permanent form actionable
per se.
• In NSW, Section 8 Defamation Act 1974
has removed the distinction between
slander and libel.
Procedure
• Defamation actions are heard by a judge
and jury.
• Judge – tribunal of law determines the
meaning and linguistics.
• Jury – tribunal of fact determines whether
the matter is defamatory
Who May Be Defamed?
• Living persons – the dead cannot be defamed
no matter how distressing to the relatives and
friends.
• Corporations – although in NSW, only if the
corporation employs fewer than 10 persons at
the time of publication of the matter, and the
corporation has no subsidiaries (within the
meaning of the Corporations Act 2001of the
Commonwealth) at that time [see Section 20
Defamation Act 1974].
• Local Government Body, Professional
Association and Trade Union
Elements of Defamation
• Elements
– Matter must be capable of bearing a defamatory
meaning (tarnish reputation).
– Matter must be published.
– Matter must relate to the plaintiff (cannot sue for
someone else).
– Absence of lawful justification (or Defences).
Elements – Defamatory Meaning
• A question of interpretation,
depending on the circumstances, the
mode and the context of publication:
Charleston v News Group Limited (1995)
2A 11 ER. - Plaintiffs complained about photos of their
heads and shoulders displayed above semi-naked
models, the whole portraying sexual activity. No liability
as the accompanying article made it clear the matter was
lifted from another publication and criticised it as a form
of pornography
Elements – Defamatory Meaning
• False Innuendo
Section 9(1) Defamation Act 1974
(1) Where a person publishes any report, article, letter, note, picture, oral utterance or
other thing, by means of which or by means of any part of which, and its publication,
the publisher makes an imputation defamatory of another person, whether by
innuendo or otherwise, then for the purposes of this section:
(a) that report, article, letter, note, picture, oral utterance or thing is a "matter" , and
(b) the imputation is made by means of the publication of that matter.
Lewis v Daily Telegraph Ltd [1964] AC 234 – Articles published in the Daily
Telegraph and Daily Mail with headlines ‘Enquiry on Firm by City Police’ and ‘Fraud
Squad Probe Firm’ which stated the police were inquiring into affairs of a company of
which the plaintiff was chairman. Plaintiff alleged the words meant he was guilty of
dishonesty or fraud. Held on appeal the words in question were not capable of
inferring guilt of fraud in their ordinary meaning
Random House Pty Ltd v Abbott (1999) ATR 81-533 – Defendants had
published a statement indicating that two politicians had changed party
immediately after having sex with an unnamed female, who later married
one of the Ministers. The innuendo that each politician was prepared to
abandon his political principles in exchange for sexual favours was readily
drawn.
Elements – Publication
• Matter must have been communicated (or “published”)
to a person other than the plaintiff or there is no injury to
reputation – Section 9 Defamation Act 1974.
• Publication need not be to a large audience. “Utterance”
to a single individual is enough, provided he/she is other
than the plaintiff himself/herself.
• Old common law rule that communication between
spouses cannot constitute publication remains the law.
• Multiple distribution and republication – Section 20
Defamation Act 1974.
• Innocent republication, newsagent reselling paper –
Section 36 Defamation Act 1974.
Elements – Relate to the Plaintiff
• A defamatory statement is not actionable unless
published of and concerning the plaintiff. The plaintiff
need not be specifically mentioned.
• Test – Would a sensible reader reasonably identify the
plaintiff as the person defamed?
• Group defamation – the plaintiff may prove himself or
herself specifically identified, either the group is so small
that the accusation can reasonably be understood to
refer to each and every one of its members, or because
the circumstances of publication permit the conclusion
that it was he/she who was aimed at amongst the group
Elements – Absence of Lawful
Justification (or Defences)
1. Triviality or Unlikelihood of Harm (Section 13
Defamation Act 1974).
2. Truth (Sections 14 to 16).
3. Absolute privilege (Sections 17 to 17KA).
4. Qualified privilege (Sections 20 to 22).
5. Protected reports (Sections 24 to 26).
6. Court notices, official notices (Sections 27 &
28).
7. Comment (Sections 29 to 35).
Triviality (or Unlikelihood of Harm)
• Test - Would a reasonable person impute
a defamatory meaning?
Section 13 Defamation Act 1974: It is a
defence that the circumstances of the
publication of the matter complained of
were such that the person defamed was
not likely to suffer harm.
Truth - General
• Section 15 Defamation Act 1974
(1) ... the truth of any imputation complained of
is not a defence as to that imputation except as
mentioned in this section.
(2) It is a defence as to any imputation
complained of that:
(a) the imputation is a matter of substantial
truth, and
(b) the imputation either relates to a matter of
public interest or is published under qualified
privilege.
Truth – Contextual Imputations
• Section 16 Defamation Act 1974
(1) Where an imputation complained of is made by the publication of
any report, article, letter, note, picture, oral utterance or other thing
and another imputation is made by the same publication, the latter
imputation is, for the purposes of this section, contextual to the
imputation complained of.
(2) It is a defence to any imputation complained of that:
(a) the imputation relates to a matter of public interest or is
published under qualified privilege,
(b) one or more imputations contextual to the imputation complained
of:
(i) relate to a matter of public interest or are published under
qualified privilege, and
(ii) are matters of substantial truth, and
(c) by reason that those contextual imputations are matters of
substantial truth, the imputation complained of does not further
injure the reputation of the plaintiff.
Truth – Substantial Truth
• The defendant need only prove the substantial truth of the statement
Alexander v NE Rys (1865) 122 ER 1221 – statement that the
plaintiff had been sentenced to a fine or three weeks imprisonment
was justified by showing that he had been given the alternative of
two weeks’ imprisonment.
• Plaintiff may succeed where the defendant is unable to justify all of
the statement
Becker v Smith’s Newspapers [1929] SASR 469 – defendant
published the plaintiff was a blackmailer, liar, swindling share pusher
and illegal immigrant. Plaintiff succeeded as the defendant was
unable to justify the last allegation.
Truth – Public Interest
•
JG Fleming proposes two broad divisions of matters:
1.
Government (national and local, including behaviour of
members of those governments), and the conduct of
public institutions and services; and
2.
Matters submitted to the public for its attention,
whether for its edification, instruction, instruction or
persuasion.
Mutch v Sleeman (1928) 29 SR(NSW) 125 –
statement that a member of parliament was a wifebeater in relation to an incident that occurred four
years previously was found to have no relevance to
the public interest and was therefore defamatory.
Absolute Privilege
Three established occasions of absolute privilege:
1.
Parliamentary papers – Section 17 Defamation Act 1974.
2.
•
•
Statements in the course of judicial proceedings
Other statutory bases - Sections17A-17KA.
Section 18 - Proceedings of inquiry
There is a defence of absolute privilege for a publication in the course of an inquiry
made under the authority of an Act or Imperial Act or under the authority of Her
Majesty, of the Governor, or of either House or both Houses of Parliament.
•
Section 19 - Report of inquiry
•
Where a person is appointed under the authority of an Act or Imperial Act or under
the authority of Her Majesty, of the Governor or of either House or both Houses of
Parliament to hold an inquiry, there is a defence of absolute privilege for a
publication by the person in an official report of the result of the inquiry.
Common Law bases in judicial proceedings.
3.
Communications between high-ranking officers of State.
Qualified Privilege
• The publication of defamatory statements is in some
instances protected by qualified privilege, in recognition
of certain necessities of social intercourse.
• Section 22 (1) – Defamation Act 1974:
Where, in respect of matter published to any person:
(a) the recipient has an interest or apparent interest in
having information on some subject,
(b) the matter is published to the recipient in the course
of giving to the recipient information on that subject, and
(c) the conduct of the publisher in publishing that matter
is reasonable in the circumstances, there is a defence of
qualified privilege for that publication.
Qualified Privilege
Section 22 (2A) Defamation Act 1974
In determining for the purposes of subsection (1) whether the conduct of the
publisher in publishing matter concerning a person is reasonable in the
circumstances, a court may take into account the following matters and
such other matters as the court considers relevant:
(a) the extent to which the matter published is of public concern,
(b) the extent to which the matter published concerns the performance of
the public functions or activities of the person,
(c) the seriousness of any defamatory imputation carried by the matter
published,
(d) the extent to which the matter published distinguishes between
suspicions, allegations and proven facts,
(e) whether it was necessary in the circumstances for the matter published
to be published expeditiously,
(f) the sources of the information in the matter published and the integrity of
those sources,
(g) whether the matter published contained the substance of the person’s
side of the story and, if not, whether a reasonable attempt was made by the
publisher to obtain and publish a response from the person,
(h) any other steps taken to verify the information in the matter published.
Protected Reports
• Section 24(1) of the Defamation Act 1974
"protected report" means a report of proceedings
specified in clause 2 of Schedule 2 (for example,
inquiry held under the legislation or authority of
the government of any country ).
• Section 24(2) defence of publication of a fair
public report
• Requirement of good faith for public information
or the advancement of education – Section 26.
Court Notices and Official Notices
•
Section 27 Defamation Act
(1)
(2)
There is a defence for the publication of a notice in accordance with the direction of a court of
any country.
Where a defence is established under subsection (1), the defence is defeated if, but only if, it is
shown that the publication complained of was not in good faith for the purpose of giving effect to
the direction.
•
Section 28
(1) There is a defence for the publication of any notice or report in accordance with an official request.
(2) Where a defence is established under subsection (1), the defence is defeated if, but only if, it is
shown that the publication complained of was not in good faith for the purpose of giving effect to
the request.
(3) Where there is an official request that any notice or report be published to the public generally or to
any section of the public, and the notice or report is or relates to a matter of public interest,
there is a defence for a publication of the notice or report, or a fair extract or fair abstract from,
or a fair report or summary of, the notice or report.
(4) Where a defence is established under subsection (3), the defence is defeated if, but only if, it is
shown that the publication complained of was not in good faith for the information of the public.
(5) This section does not affect the liability (if any) in defamation of a person making an official request.
(6) In this section, "official request" means a request by: (a) an officer of the government (including a
member of a police force) of any Australian State, or of the Commonwealth, or of any Territory
of the Commonwealth, or (b) a council, board or other authority or person constituted or
appointed for public purposes under the legislation of any Australian State, or of the
Commonwealth, or of any Territory of the Commonwealth.
•
Comment
• The defence of comment protects honest expressions of opinion on
matters of public interest. The rationale is that the truth of opinions
cannot be objectively tested.
• Like the defence of Truth, Comment must relate to a matter of public
interest:
Section 31 Defamation Act 1974:
• The defences under this Division are not available to any comment
unless the comment relates to a matter of public interest.
Gardner v Fairfax Newspapers (1942) SR(NSW) 171 at 174 per Jordan
CJ “A critic is entitled to dip his pen in gall for the purpose of
legitimate criticism, and no one need be mealy-mouthed in
denouncing what he regards as twaddle, daub or discord” .
Comment
• Opinion or fact:
Kemsley v Foot [1952] AC 345 – Foot published an article
headed “Lower than Kemsley” criticising the conduct of a
newspaper, Beaverbrook Press, unrelated to newspapers owned by
the plaintiff, Kemsley. The House of Lords held that a sufficient
factual basis exised for the headline to be comment as Kemsley was
a proprietor of a number of newspapers, whose standards of
journalism were being unfavourably commented on by Foot.
Kemsley’s ownership of newspapers and their content was public
knowledge.
Remedies – Offer of Amends
Section 9D Defamation Act 1974:
(1)
The publisher may make an offer to make amends to the aggrieved person.
(3)
An offer to make amends :
(a) must be in writing, and
(b) must be readily identifiable as an offer to make amends under this section, and
(c) must include an offer to publish, or join in publishing, a reasonable correction (if
appropriate in the circumstances) of the matter in question, and
(d) must include an offer to publish, or join in publishing, a reasonable apology (if
appropriate in the circumstances) in relation to the matter in question, and
(e) if material containing the matter has been given to someone else by the
publisher or with the publisher’s knowledge—must include an offer to take, or join
in taking, reasonable steps to tell the other person that the matter is or may be
defamatory of the aggrieved person, and
(f) must state whether it is a qualified offer and, if so, set out the defamatory
imputation in relation to which it is made, and
(g) must include an offer to pay the expenses reasonably incurred by the
aggrieved person before the offer was made and the expenses reasonably
incurred by the aggrieved person in considering the offer,
(h) may include particulars of any correction or apology made, or action taken,
before the date of the offer, and
(i) may include an offer to pay compensation for any economic or non-economic
loss of the aggrieved person.
Remedies - Injunction
Courts are generally unwilling to grant an
injunction at an interlocutory level as it may
infringe freedom of speech and amount to a
usurpation by the judge of the function of the
jury.
However, in cases where the defendant’s case is
hopeless, the courts will issue an injunction
Chappell v TCN Channel 9 (1988) 14 NSWLR 153
Remedies - Damages
Part 4 Defamation Act 1974 (Sections 46 to 48).
• Relevant harm defined in s46(1) as harm
suffered by the person defamed.
• Exemplary damages are not available in NSW –
Section 46(3)(a).
• Relevant factors s46A – there must be an
appropriate and rational relationship between
relevant harm and the amount of damages
awarded.
TORTS LECTURE
NUISANCE
WHAT IS NUISANCE?
• An unreasonable conduct that materially
interferes with the ordinary comfort of
human existence
THE TWO ‘SIDES’ OF
NUISANCE
NUISANCE
PRIVATE
PUBLIC NUISANCE
PRIVATE NUISANCE
• Unlawful interference with P’s interest in
land
• The tort protects against interferences with
the enjoyment of land
THE NATURE OF THE TORT
• Conduct or something that emanates from
D’s land
– Noise
– Dirt
– Fumes
– Noxious smell
– Vibrations etc
– (interference with TV signals)?
INTERESTS PROTECTED
• The tort centres on interest in the land that is affected
• D’s conduct must impact on P’s land as a form of
interference to the enjoyment of the land in question
– Victoria Park Racing v Taylor (D constructs a platform on
his land to view and comment on races taking place on P’s
land)
– Thomson v-Schwab v Costaki (prostitutes in the
neighbourhood)
– Raciti v Hughes (1995) (flood lights and camera equipment
overlooking P’s backyard)
TITLE TO SUE
• P must have proprietary interest in the
affected land to be able to sue
– Blay, ‘The House of Lords and the Lord of the
House: Making New sense of Nuisance’ ALJ (
1999) Vol. 73, 275
THE NATURE OF D’S
CONDUCT
• D’s conduct must be unreasonable.
– In general, acts which are reasonably necessary for
the normal use of the land would not be considered
unreasonable
– Munro v Southern Dairies ( smells from D’s property
where he keeps 5-7 horses with associated smells,
noise and flies held to constitute a nuisance)
ABNORMAL PLANTIFFS
• Where D’s conduct is neither unreasonable nor
excessive P cannot claim
– Robinson v Kilvert (27 degree heat generated as a
result of D’s work in lower floor causing damage to P’s
sensitive paper)
• But where D’s conduct even though slight, but is
malicious, P can claim
– Hollywood Silver Fox Farm Ltd v Emmett (gunshots to
frighten P’s vixen and to discourage P from setting upfarm. Pretext that the shooting was to keep rabbits off
the property was not accepted)
WHO MAY BE SUED?
• The creators of the nuisance
– Fennell v Robson Excavations (1977)
• Occupiers
– De Jager v Payneham & Magill Lodges (1984) 36 SASR
Occupier may be liable for the acts of a party who resides
on the property with occupiers permission
– Hargrave v Goldman ( an occupier may be held liable where
they allow the continuation of a nuisance from the land even
though they may not have created it initially)
PUBLIC NUISANCE
• Any nuisance that materially affects the
reasonable comfort and convenience of a class
of people
• P may sue in public nuisance only if he/she can
establish special damage above and beyond
that suffered by other members of the affected
public
– Walsh v Ervin ( D ploughs up part of highway
obstructing access to P to the highway, D held
liable)
QUEUES OBSTRUCTING
PUBLIC HIGHWAYS AND ROADS
• Silservice Pty Ltd v Supreme Bread Pty Ltd (queues
to buy bread on George Street)
– Queues do not necessarily provide a basis for an action
even where they seem to obstruct a public access way
that affects the P
– However D may be liable if
• the crowd is attracted by something done by D which is not
bona fide necessary for the conduct of his/her business
• the facility for the purpose of D’s trade is inadequate or not
suitable to hold or control the crowd
• D could employ some other reasonable means within his
control to minimize or prevent the damage to P
THE DEGREE OF
INTERFERENCE
• It is not every interference however slight
that constitutes an actionable nuisance;
the interference must be substantial and
material (York Bros v Commissioner of
Main Roads: construction of a bridge
across a river obstructs navigation by P,
held nuisance)
PUBLIC BENEFIT AND PUBLIC
NUISANCE
• In general public benefit is not a defence
that can defeat P’s objections to D’s
conduct
• Where the interference to P is not
substantial, the public benefit argument
may be used to reinforce the justification
to the inconvenience caused to P
REMEDIES
• Abatement of nuisance (self-help remedy)
– Who bears the cost of abatement?
– Normally the abater does as often there is little
or no cost, but see Proprietors-Strata Plan No
14198 v Cowell where it was held that D may
be required to bear cost if the steps taken by P
to abate were in reasonable mitigation
• Injunction to prevent the continuation
• Damages