What is a tort?

17.17   Immunity from liability in tort is perhaps the most concerning type of executive immunity from civil liability, given its effect on people’s fundamental rights. A tort is a legal wrong which one person or entity (the tortfeasor) commits against another person or entity and for which the usual remedy is an award of damages. Many torts protect fundamental liberties, such as personal liberty, and fundamental rights, such as property rights, and provide protection from interferences by other people or entities and by the Crown. In short, torts protect people from wrongful conduct by others and give claimants a right to sue for compensation or possibly an injunction to restrain the conduct. Like criminal laws, laws creating torts also have a normative or regulatory effect on conduct in society:

When the legislature or courts make conduct a tort they mean, by stamping it as wrongful, to forbid or discourage it or, at a minimum, to warn those who indulge in it of the liability they may incur.[29]

17.18   A statute authorising conduct that would otherwise be a tort may therefore reduce the legal protection of people from interferences with their rights and freedoms.

17.19   Torts are generally created by the common law,[30] although there are statutory wrongs which are analogous to torts.[31] In addition, many statutes extend[32] or limit[33] tort remedies, while statutory duties and powers may form the basis of duties or liability in tort, either in the common law tort of breach of statutory duty[34] or the common law tort of negligence.[35] Many common law torts have a long history, some dating as far back as the 13th century,[36] although others were created more recently.[37]

17.20   Although a tort may also amount to a crime, claims in tort are civil claims generally brought by people seeking compensation from the tortfeasor for injury or loss. Torts may be committed by individuals, corporate entities or public authorities, including government departments or agencies. Tort liability includes both personal liability and vicarious liability (for torts committed by employees or agents).

17.21   Torts include assault, battery, false imprisonment, trespass to land or goods, conversion of goods, private and public nuisance, intimidation, deceit, and the very expansive tort of negligence. Negligence occurs in many different social contexts, including on the roads, in the workplace, or through negligent medical care or professional services. The common law tort of defamation has long protected personal reputation from untruthful attacks.[38]

17.22   While not all consequences of tortious conduct result in an award of damages, generally people have a right to legal redress if they can prove, on the balance of probabilities, that they have been the victim of a tort. In some cases, the affected person may seek an injunction from the courts to prevent the tort happening or continuing.[39]

[29]         Tony Honoré, ‘The Morality of Tort Law’ in David Owen (ed), Philosophical Foundations of Tort Law (Clarendon Press, 1995) 75.

[30]         William Blackstone, Commentaries on the Laws of England (The Legal Classics Library, 1765) bk III; Fredrick Pollock and Frederic Maitland, The History of English Law before the Time of Edward I (Cambridge University Press, 2nd ed, 1899) vol II, ch VIII.

[31]         For example, the statutory liability for misleading or deceptive conduct in trade or commerce: see fair trading Acts and the Australian Consumer Law (Cth) s 18.

[32]         Eg, Compensation to Relatives Act 1987 (NSW). See also equivalent acts in other states and territories that extend tort liability to fatal accidents.

[33]         Eg, Civil Liability Act 2002 (NSW). See also how workers’ compensation legislation limits common law claims and how state and territory Uniform Defamation Acts regulate defamation claims.

[34]         Carolyn Sappideen and Prue Vines, ‘The Tort of Breach of Statutory Duty’ , Fleming’s Law of Torts (Thomson Reuters (Professional) Australia, 10th ed, 2011).

[35]         Kit Barker et al, The Law of Torts in Australia (Oxford University Press, 2012) 583; Sappideen and Vines, above n 12, 149–150; 215–222.

[36]         SFC Milsom, Historical Foundations of the Common Law (Lexis Nexis Butterworths, 2nd ed, 1981) 283; Pollock and Maitland, above n 30; JH Baker, An Introduction to English Legal History (Butterworths, 1971) 82–5. Despite their common law origins, most tort actions are subject to some statutory variation of the common law principles by state and territory legislation. Numerous statutes limit actions or defences, provide limitation periods, cap or exclude awards of damages, and provide for survival of actions. The Uniform Defamation Acts 2005 in all states and territories modify the common law action of defamation.

[37]         Professor Creighton and Others, Submission 24. ‘In a series of decisions between 1880 and 1901 the English courts identified a range of tort liabilities, which cumulatively had the effect of fixing any worker who engaged in industrial action, or any union official who organised such action, with responsibility for any losses that the action inflicted upon another party (most obviously, the employer)’: Ibid.

[38]         A person’s reputation is regarded as integral to his or her dignity, standing in the community and, in many cases, ability to earn income. According to William Blackstone, the ‘security of his reputation or good name from the arts of detraction and slander, are rights to which every man is entitled by reason and natural justice; since, without these, it is impossible to have the perfect enjoyment of any other advantage or right’: Blackstone, above n 30, bks 1–2. See also, Pollock and Maitland, above n 30, 536–8; Sappideen and Vines, above n 12, ch 25. The recognised defences to defamation at common law and in statutes provide important but not complete protection of freedom of speech.

[39]         For example, to prevent a trespass or a nuisance: Sappideen and Vines, above n 12, 58; 522–3. The courts are however especially cautious of granting injunctions in defamation cases, because of the risk of undue restriction on freedom of speech: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57.