Assessment on "Australian Law on Torts and Defamation"

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

The Law of Negligence

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

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

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

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

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

The Law of Causation

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

Amendments to Limitation Periods

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

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

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

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

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

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

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

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

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

(e)

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

(f)

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

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

the nature and extent of the plaintiff's loss.

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

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

Capping Damages

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

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

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

3. A court cannot order the… READ MORE