Tort Law in Australia - Australian Perspective

Australian Perspective

Generally, torts are not defined within specific statute or legislation and have evolved through judge-made law, or common law. However, each state has also created statutes to override the common law, especially in the areas of negligence, personal injuries and defamation.

Australian tort law is heavily influenced by the common law in other countries, principally the United Kingdom, by virtue of Australia's colonial heritage. However, this has since been modified by statutes such as the various State's Civil Liabilities Acts. In addition, there is also a strong and recent trend for the Australian High Court to cite with approval many principles from the United States. However, as the High Court noted:

The history of this country and of the common law makes it inevitable and desirable that the courts of this country will continue to obtain assistance and guidance from the learning and reasoning of...other great common law courts. Subject, perhaps, to the special position of decisions of the House of Lords given in the period in which appeals lay from this country to the Privy Council, the precedents of other legal systems are not binding and are useful only to the degree of the persuasiveness of their reasoning.

There are some sharp distinctions in torts between the UK and Australia:

• In Australia, trespass to the person is dependent on the directness of the act interfering with the plaintiff's autonomy. Australian law does not require the wrongdoer to have intent to trespass (see Williams v Milotin). In the United Kingdom, intent is a crucial element (see Letang v Cooper).

• If an act is direct but unintentional, a plaintiff in Australia may pursue an action based on either negligent trespass or negligence. Because intent is a requirement for trespass under UK law, negligent trespass is not available in the UK.

• The onus of proof for trespass 'on the highway' is on the plaintiff at all times (see Venning v Chin). Consequently, in a public place the plaintiff must prove how there was a 'direct' and 'substantial' interference with their personal autonomy.

• A breach of non-delegable duty is not automatic on founding a cause of action against the primary tortfeasor. Fault on the part of the contracting party must be shown.

• In cases of negligence, the Australian common law has, since 2002, used a criterion of 'salient features' to determine whether a duty of care should be imposed on the defendant. In contrast, the UK common law currently uses a three-stage test.