Table Of ContentTorts
Cases and Commentary
Eighth Edition
Torts
Cases and Commentary
Eighth Edition
Harold Luntz
BA, LLB (Witwatersrand), BCL (Oxon), LLD (Melb), FAAL
Emeritus Professor, Law School, University of Melbourne
Inaugural Recipient of the John G Fleming Award for Torts Scholarship, 2000
Admitted as Barrister and Solicitor of the Supreme Court of Victoria
David Hambly
LLB (Hons) (Melb), LLM (Harvard), FAAL
Emeritus Professor and Visiting Fellow, College of Law, Australian National University
Admitted as Barrister and Solicitor of the Supreme Courts of Victoria and the Australian Capital
Territory
Kylie Burns
BA, LLB (Hons) (UQ), LLM (QUT), PhD (Griffith)
Senior Lecturer, Griffith Law School and Law Futures Centre, Griffith University
Admitted as Solicitor of the Supreme Court of Queensland
Joachim Dietrich
LLB (Hons) (UQ), PhD (ANU)
Professor, Faculty of Law, Bond University
Admitted as Barrister of the Supreme Court of New South Wales
Neil Foster
BA, LLB (UNSW), BTh (ACT), DipATh (Moore), LLM (Newc)
Associate Professor, Newcastle Law School, University of Newcastle
Admitted as Solicitor of the Supreme Court of New South Wales
Genevieve Grant
BA, LLB (Hons) (Melb), GradCertAcPrac (Monash), PhD (Melb)
Senior Lecturer, Faculty of Law, Monash University
Admitted as Australian Lawyer and Officer of the Supreme Court of Victoria
Sirko Harder
Doctor iuris (Tübingen), LLM (UQ), PhD (Aberdeen)
Reader, School of Law, Politics and Sociology, University of Sussex
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National Library of Australia Cataloguing-in-Publication entry
Author: Luntz, Harold.
Title: Torts: cases and commentary.
Edition: 8th edition.
ISBN: 9780409342093 (pbk).
9780409342123 (ebk).
Notes: Includes index.
Subjects: Torts — Australia — Cases. Actions and
defenses — Cases.
Other Hambly, David. Burns, Kylie. Dietrich, Joachim.
Authors/Contributors: Foster, Neil.
Grant, Genevieve. Harder, Sirko.
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Preface
Since the first edition, by Harold Luntz, David Hambly and the late Robert
Hayes, was published in 1980, the aim of the authors has been to provide a
contemporary, critical account of the law of torts in Australia, in both its
theory and its day-to-day operation. Our presentation of primary sources of
the law — legislation and judicial decisions — seeks to equip readers to
determine the current state of the law and to develop analytical skills. Our
commentary seeks to promote an understanding of the operation of the law in
its social setting and to encourage readers to assess its adequacy in meeting
the needs of a rapidly changing society.
Many of the changes in this edition reflect a significant structural change
in the law of torts in recent years. The law of torts is a pre-eminent example
of the evolution of the common law over many centuries, with only marginal
legislative interventions; hence the choice of Cases and Commentary as the title
of the first edition of this book. However, especially since the early years of
this century, legislation affecting torts litigation has become pervasive. Cases
frequently turn on issues of statutory interpretation. This development is at
least partly due to a perceived need for legislation to influence, or respond to,
rapidly changing social circumstances and values.
Thus, for example, the ancient tort of trespass, as developed by the
common law, gives paramount value to bodily integrity and the liberty of the
individual, and the undisturbed possession of land and goods. It regulates
countless encounters between citizens, and between individual citizens and
public officials. In a legal system without a constitutional or statutory Bill of
Rights, the tort of trespass provides a means of bringing issues of civil
liberties before the courts, where the contest is whether a direct interference
by a public officer with a citizen’s person, land or goods is authorised by law.
Much recent legislation has augmented the authority of police and other
public officers to interfere with a person’s physical integrity or liberty, and to
enter premises without the occupier’s consent. The purpose is generally to
increase the capacity of public officers to prevent or investigate crime. The
effect is that, step by step, the interests of the individual traditionally
protected by the law of trespass are restricted or overridden in order to protect
or promote competing interests of the general community. This changing
balance of interests requires scrutiny.
In relation to the law of negligence, and particularly the law affecting
compensation for personal injury, a critical assessment of the interaction of
the common law and legislation is a major aspect of many chapters in this
book. The statutory law relating to civil liability for personal injuries has been
described as ‘a hodge-podge’ in which ‘no consistent thread of principle can
be detected’: Landon v Ferguson (2005) 64 NSWLR 131 at [17] per Ipp JA
(Hodgson and Santow JJA agreeing); New South Wales v Ball (2007) 69
NSWLR 463 at [9]–[10] per Ipp JA (McColl JA and Young CJ in Eq
agreeing). Furthermore, in our opinion, the civil liability statutes that were
enacted in the name of ‘tort reform’ in all Australian jurisdictions early in this
century were based on false premises, and misdirected. Litigation requiring
the courts to interpret and apply this legislation has proliferated, to little if
any social advantage.
In previous editions, we regretted the loss of opportunity presented in 1974
by the report of the National Rehabilitation and Compensation Committee
of Inquiry (Chairman, A O Woodhouse) to introduce a single comprehensive
accident compensation scheme in Australia. In recent years, the National
Disability Insurance Scheme (NDIS) has been introduced to provide care and
support services for those with permanent and significant disability and
National Injury Insurance Schemes (NIIS) have been introduced for most
catastrophic work and vehicle injuries in Australia. At the time of writing, the
NDIS is not expected to be fully operational until 2020 and faces potential
economic strain. Medical, criminal and general injuries remain uncovered by
lifetime care and support schemes. We discuss the NDIS and NIIS schemes
in Chapter 1, and we welcome the improvement of services and support they
promise for those who suffer disability as a result of catastrophic injuries in
Australia. However, the advent of the NDIS and NIIS is not a panacea for
the many problems with the operation of tort law we discuss in the book.
They have introduced yet another level of complexity into an already complex
landscape.
We hope that the critical tone of the commentary throughout the book
will stimulate readers in their appraisal of legislation and judicial decisions,
