An action in tort

4.25 There are a number of reasons for the proposal that the new cause of action should be an action in tort.

4.26 First, and most importantly, describing the statutory cause of action as a tort action will provide certainty, and prevent disputes arising, about a number of ancillary issues that will inevitably arise. Courts frequently have to decide whether a particular statute gives rise to an action in tort for the purposes of determining whether other consequences follow at common law or under other statutes.^[21] This will also be the case if a new statutory cause of action is enacted. For example:

• At common law, an employer is vicariously liable where an employee has injured a third party by a tort committed in the course of employment.^[22] It may be relevant to decide whether an employer is vicariously liable to the claimant, in addition to an employee, where the employee is liable under the statutory cause of action.

• At common law, the applicable law for intra-Australian and international torts depends on the place where the tort was committed.^[23]

• Many legislative provisions refer to liability in tort. For example, some Australian jurisdictions impose an obligation on an employer to indemnify an employee in respect of ‘liability incurred by the employee for the tort’ to a third party where the tort occurred in the course of employment.^[24] Statutory contribution rights may apply only to ‘tortfeasors’.^[25]

4.27 Describing the action as a tort action will thus avoid many consequential questions arising once primary liability is established. The cause of action will be more fully integrated into existing laws than if it were simply described as a cause of action. This will also avoid the need for numerous specific provisions dealing with these ancillary issues, adding undesirable length to the legislation.^[26]

4.28 Secondly, classifying a civil action for redress which leads to monetary compensation as a tort, is consistent with accepted legal classifications. Defining what is a tort precisely, exhaustively and exclusively is a surprisingly difficult task. Leading texts tend to answer the question in relatively general terms. Fleming’s The Law of Torts, for example, defines a tort as ‘an injury other than a breach of contract, which the law will redress with damages’, but then goes on that ‘this definition is far from informative’.^[27] Torts may be created by common law or statute.^[28]

4.29 Definitions of ‘tort’ often contain two key features. First, a tort is a civil (as opposed to a criminal) wrong, which the law redresses by an award of damages. Secondly, the wrong consists of a breach of an obligation, often in negative terms such as not to harm or interfere with the claimant, imposed by law (rather than by agreement). But neither of those factors is exclusive to tort law and neither is always borne out, as most texts go on to discuss.

4.30 Nevertheless, liability for conduct invading the privacy of another is analogous to, and will often co-exist with, other torts protecting people from interferences with fundamental rights. Situating the cause of action within tort law will allow the application of common law principles settled in analogous tort claims, particularly in relation to fault, defences and the award of damages and assessment of remedies, where these matters are not set out in the new Act. This will enhance the coherence and consistency of the law.

4.31 Thirdly, the nomenclature of tort is consistent with developments in comparable jurisdictions and would allow Australian courts to draw on analogous case law from other jurisdictions, thus reducing uncertainty and complexity. The four Canadian provinces which have enacted legislation for invasions of privacy describe the relevant conduct as ‘a tort’.^[29] The New Zealand courts have recognised new causes of action in tort to protect privacy.^[30] Developments in the United Kingdom derive from the extension of the equitable action for breach of confidence under the influence of the Human Rights Act 1998 (UK). However, the misuse of private information giving rise to the extended or new cause of action in the United Kingdom is increasingly referred to as a ‘tort’.^[31] While Australian courts may not be prepared to take the same leap in classification as may have occurred there, the legislature is not so constrained.

4.32 Fourthly, describing the action as a tort action will clarify and highlight the distinctions between the statutory cause of action for serious invasion of privacy and existing regulatory regimes, such as those under the Privacy Act 1988 (Cth) and the Broadcasting Services Act 1992 (Cth).

4.33 Fifthly, describing the statutory cause of action as a tort action will clearly differentiate it from the equitable and contractual actions for breach of confidence. These will continue to exist and develop to protect confidential information, against the contracting party or confidant and against a third party who has the requisite knowledge that the material is confidential.^[32] Lastly, there is no reason why the tort nomenclature should constrain the legislature from making specific provision for remedies not generally available in tort at common law, for example, ordering an apology or an account of profits; limiting remedies usually available in tort; or capping the amounts of certain types of damages.

4.34 In 2009, the New South Wales Law Reform Commission (NSWLRC) recommended against identifying the statutory cause of action as an action in tort, or leaving the courts to construe the action as one in tort. It gave two reasons. First, tort actions do not generally require courts to engage in the sort of overt balancing of interests involved in the statutory cause of action.^[33] However, in the ALRC’s view this point seems to overlook or downplay the balancing that is required in some existing tort actions. Tort actions in private nuisance frequently require the courts to balance the interests of the plaintiff with those of the defendant in their respective use of their land.^[34] Nuisance law famously rests on ‘a rule of give and take, live and let live’, according to the well-known aphorism of Baron Bramwell in Bamford v Turner in 1860.^[35] In Sedleigh Denfield v O’Callaghan, Lord Wright made a point that would be apt in many cases involving alleged invasions of privacy and the balancing of individuals’ rights:

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.^[36]

4.35 Secondly, the NSWLRC said that describing the cause of action as a tort would require the legislation to specify whether the cause of action requires fault on the defendant’s part. Further, if it did require fault, what kind of fault, and whether it requires proof of harm or is actionable per se. The NSWLRC considered that the issue of fault was ‘appropriately left to development in case law’ and that it was unnecessary to specify whether the action is maintainable only on proof of damage.^[37] The VLRC agreed with this approach, adding that ‘there is little to be gained—and many complex rules of law to be navigated—if any new cause of action is characterised as a tort’.^[38] Examples given were rules as to fault, damage, remedies and vicarious liability.

4.36 The ALRC considers that it is highly desirable, if not essential, that the legislator should determine whether or not the cause of action requires proof of a certain type of fault and harm. To leave such key elements of a statutory cause of action to be decided by the courts would be highly problematic. An absence of specificity would increase uncertainty as to the statute’s application. This has been a key concern of stakeholders in relation to previous proposals for a statutory cause of action.^[39] People need to have some guidance in advance as to when their activities might be judged to be an actionable invasion of privacy leading to civil liability. Similarly, potential claimants need guidance as to whether they could prove an actionable invasion of their privacy. The comments by the European Court of Human Rights in 1966 on the law of the United Kingdom in a different context are apposite:

The relevant national law must be formulated with sufficient precision to enable the persons concerned—if need be with appropriate legal advice—to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.^[40]

4.37 If no element of fault is included, it would be open for a court to determine that strict liability was intended or imposed, as for example under ss 18 and 237 of the Australian Consumer Law.^[41] The ALRC considers that strict liability, or negligence based liability, would be oppressive or undesirable. Certainty is also desirable in relation to the issue of damage or actionability per se. Questions will undoubtedly arise as to other ancillary issues on liability. The ALRC proposes the integration of the statutory action into the existing legislative and common law framework of tort law. This approach is preferable to the establishment of an entirely separate legislative framework,^[42] or to leaving these issues open and therefore uncertain in key respects.