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Update on Torts

NZ $45.00
Author(s): Christine French, Stephen Todd
Published: 12 October, 1998
Pages: 145


There is an infinite number of ways in which one person may cause loss or harm to, or interfere with the interests of, another person. They might all be seen as at least potentially falling within the province of the law of tort. Individuals wish to be secure against harm and interference with their bodily integrity, with their peace of mind and with their freedom to move about. They wish not to be disturbed in the ownership and use of their land or goods, in carrying on their work and in their enjoyment of leisure activities and entertainment. They want recognition of and protection for their financial interests, including their existing financial well-being and their opportunities for economic gain by making and maintaining advantageous business relations with others. They are concerned with preventing intrusions into their private lives and their family relations and with maintaining their honour and reputation. Indeed, as Prosser has observed,

the catalogue of [individuals’] interests might be as long as the list of legitimate human desires; and not the least of them is the desire to do what they please, without restraint and without undue consideration for the interests and claims of others. (Torts 5th ed, West Publishing Co, St Paul, Minnesota, 1984, p 16)

It is, of course, the task of the courts in laying down the rules of tort to tell us which of the myriad forms of interferences by one person with the interests of another is or may be deserving of legal protection. While the core areas or categories of liability are reasonably well established, claims on the boundaries provide a constant and fertile source for disputation. The courts frequently are asked to adjudicate on a novel claim, and clearly enough they have the capacity to recognise new duties and liabilities, whether by way of decisions widening the ambit of existing torts or of decisions recognising the existence of new torts. Ultimately it rests on policy considerations, sometimes express, sometimes implicit, whether the courts are prepared to create new heads of tortious liability or whether they refuse to build upon or to extend existing limits.

All of this suggests that the law of torts rarely stands still. Indeed, developments in the law during the 1990s, as always, have proceeded apace. In recent years a stream of major decisions, in New Zealand, Australia, England and Canada, has challenged the boundaries of liability. A fresh evaluation is, therefore, opportune.

This update, while not seeking to provide an exhaustive overview of the whole field of torts, will examine various areas of the law in which there have been important new decisions, or where there has been legislative intervention, or where significant proposals for reform have been made. Our focus will be on the following topics.

  • Negligence. The general approach to be taken in determining the duty issue is now fairly well settled in the light of the decision of the Court of Appeal in South Pacific Manufacturing v New Zealand Security Consultants [1992] 1 NZLR 282. Of course the resolution of this issue in any particular case often remains difficult and elusive. We will consider developments in the fields of psychiatric injury, misstatements, and financial loss, and look particularly at the liability of directors, of builders and of public bodies.
  • Misfeasance in a public office. The relationship between the liability of public bodies for misfeasance and for negligence needs to be clarified. The action for breach of the New Zealand Bill of Rights Act 1990 also has a significant impact in this field of liability.
  • Nuisance. In recent cases the House of Lords has re-examined the ambit of nuisance and has treated the rule in Rylands v Fletcher (1866) LR 1 Ex 265, (1868) LR 3 HL 330 as a species of nuisance. The High Court of Australia, by contrast, has subsumed Rylands v Fletcher within the ambit of negligence. Some guidance on the issue has now been given in the Court of Appeal.
  • Defences in defamation. The Lange decisions in Australia ((1997) 71 ALJR 818) and New Zealand (Court of Appeal, Wellington, CA 52/97, 25 May 1998) have changed the balance of public interest in defamation cases, by developing a new defence of political discussion.
  • Harassment and the protection of privacy. Judicial developments reflect an emerging public concern in this field. Parliament also has intervened, by passing the Privacy Act 1993 and the Harassment Act 1997.
  • Exemplary damages. The basis upon which exemplary damages can be awarded has continued to attract debate. In Daniels v Thompson [1998] 3 NZLR 22, the Court of Appeal has examined the problem posed by bringing both criminal and civil actions and the consequent risk of double jeopardy.
  • Limitation of actions. Invercargill CC v Hamlin [1996] 1 NZLR 513 has resolved the limitation problem in the context of defective buildings. The Court of Appeal has since called into question the traditional view as to when a cause of action for a tort can be seen to accrue.

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