Law of torts

1716 Pages·2013·12.276 MB·English

by  J. L. R. Davis, Rosalie P. Balkin

Law of Torts
Fifth Edition
R P BALKIN
BA, LLB, PhD (WITS)
Advocate of the Supreme Court of South Africa
Assistant Secretary-General/Director, Legal Affairs and External Relations
Division, International Maritime Organization
J L R DAVIS
BA, LLB (NZ), LLM (Cantab)
Barrister and Solicitor of the High Court of New Zealand
Professor Emeritus of the Australian National University
LexisNexis Butterworths
Australia
2013
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National Library of Australia Cataloguing-in-Publication entry
Author: Balkin, R P (Rosalie P).
Title: Law of Torts.
Edition: 5th ed.
9780409332049 (pbk).
ISBN: 9780409332056 (hbk).
9780409332063 (ebk).
Notes: Includes index.
Subjects: Torts — Australia. Torts — New Zealand.
Other Authors/Contributors: Davis, J L R.
Dewey Number: 346.9403.
© 2013 Reed International Books Australia Pty Limited trading as
LexisNexis.
First edition, 1991; Second edition, 1996; Third edition, 2004 (Reprinted
2005, 2006 and 2007); Fourth edition 2009 (Reprinted 2011).
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Preface to the Fifth Edition

Our aim in preparing this edition remains as it has been in previous editions
— to present a comprehensive statement of the law of torts in Australia and
New Zealand. In putting forward that statement, we have sought not only to
describe the law as it currently stands but also to indicate, where appropriate,
those aspects of the law which we consider to be in need of reform, and to
suggest possible paths of reform.
The only major change to the law since the previous edition has been the
introduction of the Australian Consumer Law. This has brought some
welcome uniformity to the law relating to the proscription on misleading or
deceptive conduct in trade or commerce. No longer need we refer to both the
Trade Practices Act 1974 (Cth) s 52 and the equivalent provision in the Fair
Trading legislation of the Australian states and territories and in the Fair
Trading Act 1986 (NZ) s 9. For reasons that are explained in Chapter 22, the
sources of that statutory proscription are now confined to the Australian
Consumer Law s 18 and s 9 of the above New Zealand statute.
Despite the relative paucity of changes to the law that have taken effect
since the previous edition, there are at least two areas in which change has
been proposed for the near future. We noted in Chapter 17 of the fourth
edition that the Australian Law Reform Commission had proposed the
introduction of a statutory cause of action for a serious invasion of privacy. It
is to be regretted that this remains no more than a proposal, but we can hope
that the recommendation will have borne fruit before the next edition is
prepared.
The second proposed change is the introduction by the Commonwealth
Government of a National Injury Insurance Scheme. On 29 November 2012,
the Minister for Disability Reform, the Hon Jenny Macklin MP, introduced
into the federal parliament the National Disability Insurance Scheme Bill
2012, which establishes the framework for that scheme. That scheme seeks to
benefit those with disabilities, whatever their cause, and does not, therefore,
seek to replace any aspect of the law of torts. However, the same cannot be
said for the National Injury Insurance Scheme, which the federal government
has promised to introduce into the current parliament. It is designed to cover
people’s lifetime care and support needs if they have acquired a catastrophic
injury from any accident. Although such accidents may occur without fault
being attributed to any person, it is clear that this latter scheme will, to at
least some extent, provide compensation for those who currently must rely on
the law of torts. We hope that this scheme will have reduced reliance on the
law of torts to some extent by the time we come to prepare the next edition.
As with all previous editions, we are indebted to many people in the
preparation of this edition. We wish particularly to thank Mr Kevin Touhey
in London and Mr Stephen Argument in Canberra for working marvels in
providing us with information on any relevant changes to the law, and Mrs
Dany Broderick-Bunn for invaluable assistance in preparing the manuscript.
We are also deeply indebted to Ms Jocelyn Holmes, of LexisNexis
Butterworths in Sydney, for providing a wealth of support throughout the
months that it has taken to prepare this edition and to Ms Felicia Gardner, the
editor for this edition, with whom it has been a pleasure for both of us to see
the whole project to conclusion.
We completed the bulk of the preparation of the manuscript for this edition
by early October 2012, and we have sought to state the law as at that date.
We have been able to add occasional footnote references to judicial and
statutory developments occurring thereafter.
Rosalie Balkin
London
Jim Davis
Canberra
December 2012
Preface to the First Edition

Our purpose in writing this book has been to present the principles of the law
of torts as they are currently applied by the courts in Australia and New
Zealand. In so far as we have consciously had in mind a particular audience,
we have tried to provide sufficient detail and analysis to make the work
suitable both for university students and legal practitioners.
Since we have sought to state the law in New Zealand as well as in
Australia, we have dealt first with the torts derived from trespass, which
continue to be relevant on both sides of the Tasman, before turning to a
consideration of the tort of negligence. In our discussion of the latter tort, we
have devoted a separate Chapter to the circumstances in which one may
recover the purely economic loss suffered by reason of another’s negligence.
This is a topic which, like the torts derived from trespass, is of importance in
both countries.
We have included a Chapter on the protection of trading and financial
interests given by s 52 of the Trade Practices Act (and the equivalents of that
section in the legislation of the Australian states and of New Zealand)
together with the remedial provisions of that legislation. It is obvious that s
52 does not create a new tort, but the statutory proscriptions of misleading or
deceptive conduct have effectively replaced the torts of passing off and
injurious falsehood, and have rendered the tort of deceit, as well as liability
for negligent misrepresentation, of much less importance than either were
before the enactment of these provisions.
The genesis of this book was a suggestion from the publishers to prepare
an Australian edition of Street on Torts. Developments, both legislative and
judicial, in the two countries have resulted in such a divergence between the
law in England and in Australia that the task no longer seemed feasible. As a
consequence we have used Harry Street’s work primarily as a guide, although
we have retained several segments where the law is still similar. In addition,
we are grateful to Margaret Brazier, who was responsible for the eighth
edition of Street, for letting us have the page proofs of her work before
publication. We were therefore able to make use of one or two passages she
had prepared covering relevant English authorities.
The attention we have given to New Zealand law is partly a consequence
of growing awareness of the need for cooperation on both sides of the
Tasman. However, we have not confined ourselves to Australian and New
Zealand law, but turned, as occasion required, to Canada and the United
States as well as to England for illustrations, or to suggest a path for the
future development of the law.
The persons who assisted in the production of this book, particularly in
providing secretarial and research assistance, are too numerous to mention,
though our special thanks are due to Peter Hohnen, a partner in the Canberra
firm of Macphillamy, Cummins and Gibson, for reading and advising on the
first draft of the chapters on defamation.
The text was completed by the end of 1989, and we have sought to state
the law as at that time. However, we incorporated references to a number of
developments which came to our notice by the time the book was at galley
proof stage. It is unfortunate that the recent decision of the House of Lords in
Murphy v Brentwood District Council [1990] 3 WLR 414; [1990] 2 All ER
908 appeared too late to be considered in the text.
R P Balkin
J L R Davis
Canberra
August 1990
Table of Cases
References are to paragraphs
A
A v B HC Palmerston North, CP 9/98 .… 8.24
— v Bottrill [2003] 1 AC 449; [2003] 2 NZLR 721 .… 2.5, 27.11
— v Hoare [2008] 1 AC 844; 2 All ER 1 .… 28.14
— v M [1991] 3 NZLR 228 .… 3.14, 27.11
— v New South Wales (2007) 230 CLR 500; 233 ALR 584 .… 25.8, 25.12, 25.13, 25.14
— v Roman Catholic Archdiocese of Wellington [2007] 1 NZLR 536 .… 7.23
— v — [2008] 3 NZLR 289 .… 7.23, 26.54
A (a minor) and B (a minor) by C (their mother) v A Health and Social Services Trust [2010] NIQB
108 .… 7.60
A (children) (conjoined twins: surgical separation), Re [2001] Fam 147; [2000] 4 All ER 961 .… 6.9,
6.21
A Abrahams and Sons Pty Ltd v Commr for Railways [1958] SR (NSW) 134 .… 4.59
A Local Authority v Ma, Sa, Na [2005] EWHC 2942 .… 6.9
A R Griffiths & Sons Pty Ltd v Richards [2000] 1 Qd R 116 .… 29.40
A/S Bannockburn v Williams (1912) 12 SR (NSW) 665 .… 26.59
A’Court v Cross (1825) 3 Bing 329; 130 ER 540 .… 28.2
AA Tegel Pty Ltd v Madden (1985) 2 NSWLR 591 .… 11.52
Aas v Superior Court 12 P 3d 1125 (2000) .… 13.66
AB v Leeds Teaching Hospital NHS Trust [2003] EWHC 1034 .… 4.16
Abalos v Australian Postal Commission (1990) 171 CLR 167; 96 ALR 354 .… 8.36
Abbott v Arcus (1948) 50 WALR 41 .… 14.11
— v NSW Monte de Piete Co (1904) 4 SR (NSW) 336 .… 6.24
— v TCN Channel Nine Pty Ltd (1987) Aust Torts Reports 80–138 .… 18.14
ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; 185 ALR 1 .… 5.22
Abela v Giew (1965) 65 SR (NSW) 485 .… 16.12, 16.20
Abrams (J & JC) Ltd v Ancliffe [1978] 2 NZLR 420 .… 13.34, 23.19
Abrath v NE Railway Co (1883) 11 QBD 440 .… 25.10, 25.11, 25.14
— v — (1886) 11 App Cas 247 .… 25.10
Abundant Earth Pty Ltd v R & C Products Pty Ltd (1985) 59 ALR 211 .… 22.19, 22.24, 22.25
AC v Manitoba (Director of Child and Family Services) [2009] 2 SCR 181 .… 6.9
Accident Compensation Corporation v D [2008] NZCA 576 .… 12.45
Acker v Kerr (1973) 42 DLR (3d) 514 .… 15.5, 15.10
Ackland v Commonwealth (2007) Aust Torts Reports 81–916 .… 10.7
ACOA v Commonwealth (1979) 26 ALR 497 .… 27.51
Acrecrest Ltd v WS Hattrell (1979) 252 Estates Gazette 1107 .… 7.33
Acrecrest Ltd v WS Hattrell [1983] QB 260; 1 All ER 17 .… 7.33
ACT v Crowley [2012] ACTCA 52 .… 7.30
Acton Corporation v Morris [1953] 2 All ER 932 .… 5.1
Adam v Ward [1917] AC 309 .… 19.38, 19.44, 19.51, 19.56
Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 120 .… 28.19
— v Kennedy (2000) 49 NSWLR 78 .… 1.9, 6.42
— v Mayor of Brunswick (1894) 20 VLR 455 .… 5.15
Adamson v Motor Vehicle Insurance Trust (1957) 58 WALR 56 .… 8.17, 29.16
Adastra Aviation Ltd v Airparts (NZ) Ltd [1964] NZLR 393 .… 29.32
Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; 260 ALR 628 .… 7.30, 8.31, 9.6
Adelaide Chemical and Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514 .… 9.15
Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538; [1941] ALR 212 .… 8.40
Adler v Dickson [1955] 1 QB 158; [1954] 3 All ER 397 .… 10.23
Administration of Papua and New Guinea v Leahy (1961) 105 CLR 6 .… 7.35
Admiralty Commissioners v SS Amerika [1917] AC 38 .… 11.33, 20.12, 24.4
— v SS Volute [1922] 1 AC 129 .… 9.6, 10.6
Adour Holdings Pty Ltd v Commonwealth Bank (1991) ATPR 41–147 .… 22.26
Advanced Hair Studio Pty Ltd v TVW Enterprises Ltd (1987) 77 ALR 615 .… 17.16
Advanced Technology Structures Ltd v Cray Valley Products Ltd [1993] BCLC 723 .… 25.41
Advertiser-News Weekend Publishing Co Ltd v Manock (2005) 91 SASR 206 .… 19.4, 19.9
Aerospatiale Societe Nationale Industrielle v Aerospatiale Helicopters Pty Ltd (1986) 11 FCR 37 .…
22.19
AFA Airconditioning Pty Ltd v Mendrecki (2008) 101 SASR 381 .… 16.6, 26.34
Affutu-Nartoy v Clarke (1984) The Times, 9 February .… 6.6
A-G v Body Corporate 200200 [2007] 1 NZLR 95 .… 7.14
— v Carter [2003] 3 NZLR 160 .… 13.26
— v Geothermal Produce NZ Ltd [1987] 2 NZLR 348 .… 26.25, 26.32
— v Lane Cove MC [1976] 2 NSWLR 1 .… 14.46