Glossary of Australian Tort Law Terms

Introduction

The law of torts in Australia comprises a body of common law principles and statutory modifications that govern civil wrongs. Following the Ipp Report (2002) and the subsequent enactment of uniform civil liability legislation across all Australian states and territories, Australian tort law now operates within a framework of legislative reform that modifies the common law, particularly in relation to negligence. This glossary defines the core terms relevant to the study and practice of Australian tort law.

B

Breach — The second element of a cause of action in negligence, requiring a determination that the defendant’s conduct fell below the standard of care expected of a reasonable person in the circumstances. The common law test, established in Wyong Shire Council v Shirt (1980) 146 CLR 40 (Mason J), requires the court to consider: (a) the probability of harm; (b) the likely seriousness of the harm; (c) the burden of taking precautions to avoid the risk; and (d) the social utility of the defendant’s activity. This test has been codified and modified by civil liability legislation in all jurisdictions (e.g., s 5B of the Civil Liability Act 2002 (NSW)).

C

Causation — The third element of negligence, requiring the plaintiff to establish that the defendant’s breach of duty caused the plaintiff’s harm. Australian law applies a two-limb test under the civil liability legislation (e.g., s 5D of the Civil Liability Act 2002 (NSW)): first, the “necessary condition test” (factual causation — “but for” the defendant’s negligence, would the harm have occurred?); second, the “scope of liability” test (normative causation — whether it is appropriate for the defendant’s liability to extend to the harm actually suffered). The common law approach, before codification, was stated in March v E Stramare (E & MH) Pty Ltd (1991) 171 CLR 506.

Contributory Negligence — A partial defence that reduces a plaintiff’s damages by reference to the plaintiff’s own failure to take reasonable care for their safety, where that failure contributed to the harm suffered. Under apportionment legislation (e.g., s 9 of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW)), the court reduces damages by a percentage reflecting the plaintiff’s share of responsibility for the harm.

D

Dangerous Recreational Activity — A statutory defence under the civil liability legislation (e.g., s 5L of the Civil Liability Act 2002 (NSW)): a defendant is not liable for harm suffered by a plaintiff engaged in a “dangerous recreational activity” where the harm is the materialisation of an obvious risk of the activity. The defence reflects a policy judgment that participants in inherently risky activities should bear the consequences of known risks.

Defamation — The tort of publishing defamatory matter about a person that causes serious harm to their reputation. Australian defamation law is now governed by uniform legislation enacted in all states and territories (the Defamation Act 2005 (NSW) and equivalent Acts). The uniform legislation introduced key reforms: a requirement that the plaintiff establish serious harm to reputation, a public interest defence (s 29), and a cap on damages for non-economic loss (currently $459,000, indexed). The High Court’s decision in Fairfax Media Publications v Voller (2021) 273 CLR 43 confirmed that media entities may be liable as publishers of third-party comments on their Facebook pages.

Duty of Care — The first element of a cause of action in negligence. The plaintiff must establish that the defendant owed them a duty to take reasonable care. At common law, the “neighbour principle” from Donoghue v Stevenson [1932] AC 562 (Lord Atkin) established the foundational test: persons must take reasonable care to avoid acts or omissions that could reasonably foreseeably injure their “neighbour.” In Australia, the High Court has adopted a salient features test for determining whether a duty exists in novel categories: Sullivan v Moody (2001) 207 CLR 562; Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649. Relevant features include foreseeability of harm, the nature and degree of proximity, policy considerations, and the existence of conflicting duties.

H

Hollis v Vabu — (2001) 207 CLR 21. The leading High Court authority on vicarious liability in Australia. The Court held that a courier company was vicariously liable for the negligence of its bicycle couriers, whom it classified as independent contractors but who were, in substance, employees. The case established that the “totality of the relationship” must be examined to determine whether a relationship is one of employment, with particular attention to the degree of control exercised by the putative employer.

I

Ipp Report — The Review of the Law of Negligence (2002), chaired by Hon David Ipp, commissioned by the Commonwealth Government following the “insurance crisis” of 2001–2002. The Report made 61 recommendations that formed the basis of the uniform civil liability legislation enacted across Australia. Key recommendations included: the codification of the duty of care, standard of care, and causation tests; restrictions on damages for economic loss and psychiatric injury; and proportionate liability for non-personal injury claims.

N

Negligence — The dominant tort in Australian law, comprising three core elements: (1) a duty of care owed by the defendant to the plaintiff; (2) breach of that duty (the defendant failing to meet the required standard of care); and (3) causation — the breach causing the plaintiff’s harm, within the scope of liability. Damages must not be too remote. The elements have been modified by civil liability legislation enacted following the Ipp Report.

Nervous Shock — The common law term for psychiatric injury or mental harm caused by the defendant’s negligence. In Australia, liability for psychiatric injury is governed by the principles in Tame v New South Wales (2002) 211 CLR 317, which rejected the need for a “sudden shock” requirement and held that a plaintiff must establish that a person of “normal fortitude” would have suffered the psychiatric injury in the circumstances. Civil liability legislation in most jurisdictions now requires the plaintiff to establish that the psychiatric injury was a “recognised psychiatric illness” and that the defendant foresaw or ought to have foreseen the risk of such injury.

Non-Delegable Duty — A duty of care that the defendant cannot delegate to a third party, even by engaging an independent contractor to perform the task. These duties arise in certain established categories: employer to employee (safe system of work), hospital to patient, school to pupil, and (in some jurisdictions) occupier to entrant. The High Court has held that the duty is “non-delegable” because it is founded on the defendant’s undertaking of responsibility for a vulnerable plaintiff: Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520.

Nuisance — The tort of interference with a person’s use or enjoyment of land. Private nuisance concerns interference with the plaintiff’s rights as an occupier of land (e.g., noise, fumes, encroaching roots). Public nuisance concerns acts that interfere with the rights of the public (e.g., obstruction of a highway). In Australia, the relationship between nuisance and negligence has been the subject of significant judicial analysis: Hunter v Canary Wharf Ltd [1997] AC 655 (applied in Australia with modifications).

O

Occupiers’ Liability — The duty owed by occupiers of premises to entrants. At common law, the duty was graduated according to the entrant’s status (invitee, licensee, trespasser). The High Court abolished these categories in Australian Safeway Stores v Zaluzna (1987) 162 CLR 479, holding that the single, uniform duty of reasonable care applies. Civil liability legislation has since confirmed this approach, requiring the occupier to take such care as is reasonable in all the circumstances.

P

Product Liability — The liability of manufacturers and suppliers for harm caused by defective goods. Part 3-5 of the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth), ss 138–150) provides a statutory regime for strict liability (liability without proof of fault) where goods have a “safety defect” that causes personal injury, property damage, or economic loss. The regime parallels the European Union’s Product Liability Directive and operates alongside the common law tort of negligence.

Proportionate Liability — A statutory modification of the common law rule of joint and several liability, applicable in claims for economic loss or property damage (but not personal injury). Under proportionate liability provisions (e.g., Part 4 of the Civil Liability Act 2002 (NSW)), a defendant is liable only for the proportion of the loss attributable to their share of responsibility, reflecting the comparative fault of all concurrent wrongdoers. The reform was introduced following the Ipp Report to address concerns about “deep pocket” defendants bearing disproportionate liability.

Pure Economic Loss — Financial loss unaccompanied by physical damage to person or property. Australian law recognises recovery for pure economic loss in limited categories: (a) negligent misstatement causing reliance loss (Hedley Byrne v Heller [1964] AC 465, adopted in Mutual Life & Citizens’ Assurance Co Ltd v Evatt (1968) 122 CLR 556); (b) economic loss from damage to a third party’s property (Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” (1976) 136 CLR 529); and (c) economic loss from defective buildings or infrastructure (Woolcock Street Investments v CDG Pty Ltd (2004) 216 CLR 515). Recovery is constrained by the requirement of vulnerability — the plaintiff must be unable to protect itself from the risk of loss.

S

Scope of Liability — The second limb of the causation test (s 5D(1)(b) of the Civil Liability Act 2002 (NSW)), formerly known as remoteness of damage. The court must determine whether it is appropriate for the defendant’s liability to extend to the harm actually suffered, having regard to the kind of harm that was reasonably foreseeable at the time of the breach. The scope of liability inquiry is normative in character, reflecting policy judgments about the appropriate limits of tort liability.

Standard of Care — The objective standard against which a defendant’s conduct is measured to determine whether there has been a breach of duty. The standard is that of the “reasonable person” in the defendant’s position. Where the defendant professes specialised skill or knowledge, the standard is that of the “reasonable professional” with that skill. Professional standards are governed by s 5O of the Civil Liability Act 2002 (NSW): a professional is not negligent if their conduct was “widely accepted” in Australia by peer professional opinion as competent professional practice.

T

Tame v New South Wales — (2002) 211 CLR 317. A landmark High Court decision on liability for nervous shock (psychiatric injury). The Court rejected the requirement that psychiatric injury must be caused by a “sudden shock” and held that the plaintiff’s vulnerability to psychiatric injury is not relevant unless known to the defendant. A plaintiff must be a person of “normal fortitude” to recover, and the psychiatric injury must be a reasonably foreseeable consequence of the defendant’s negligence.

Trespass — A tort actionable per se (without proof of damage). Trespass to the person comprises battery (direct, intentional physical contact without consent), assault (a reasonable apprehension of imminent physical contact), and false imprisonment (total deprivation of liberty without lawful justification). Trespass to land is the direct, intentional or negligent, unauthorised entry upon land in the plaintiff’s possession. Trespass remains an important tort in Australian law, distinct from negligence in its focus on the vindication of rights rather than compensation for loss.

V

Vicarious Liability — The strict liability of an employer (or principal) for the tortious acts of an employee (or agent) committed in the course of their employment or engagement. The doctrine is based on policy considerations: the employer who creates the risk of harm and benefits from the employee’s activities should bear the cost of injuries caused: Hollis v Vabu (2001) 207 CLR 21. The High Court has also recognised vicarious liability for the intentional torts of employees where the conduct is “closely connected” with the employment: New South Wales v Lepore (2003) 212 CLR 511.

Voluntary Assumption of Risk — A complete defence to negligence (volenti non fit injuria). The defence requires the defendant to prove that the plaintiff knew of the risk and freely accepted it, both legally and physically. The defence has been significantly curtailed by civil liability legislation (e.g., s 5G–5I of the Civil Liability Act 2002 (NSW)), which requires that the risk be an “obvious risk” and that the plaintiff gave an “express or implied” agreement to assume it.