This book is only available in PDF format 
Published: 28 June, 2005
Pages: 112

Introduction

The law of torts does not stand still. Litigation constantly tests the limits of existing principle. Of course, the core areas of liability are reasonably well established, but claims on the boundaries are always arising and provide fertile sources for disputation. When a court is asked to adjudicate on a novel claim the starting point naturally is the accumulated wisdom and experience of earlier courts in reaching decisions which help throw light on the question in issue. Certainly the courts usually prefer to proceed cautiously and to emphasise the need for incremental development of the law. Yet this approach can only take a court part of the way. Decisions extending existing principle ultimately rest on policy considerations, sometimes express, sometimes implicit. Policy necessarily guides the courts in deciding whether to create new areas of tortious liability or whether to refuse to build upon existing limits.

We can identify a number of broad policy considerations which underlie the decisions of the courts in marking out how far tort liability should extend. They are concerned, among other things, with questions of fairness and justice, with the value of precedent and the effect of their decision on certainty and coherence in the law, with the practicality of defining and limiting a proposed head of liability, with considerations of commercial convenience, with promoting self-reliance and individual autonomy, and with the deterrent and economic implications of their decision for the future. We will find these and similar concerns constantly emerging in the cases as they determine whether or in what direction the law ought to develop or change.

Disputes usually are about the ambit of existing torts, but occasionally a court may be asked to recognise the existence of a wholly new tort. The outstanding recent example is the recognition in New Zealand of a right of action for invasion of privacy (Hosking v Runting [2005] 1 NZLR 1) and in England for breach of confidence in making a public disclosure of private information (Campbell v MGN Ltd [2004] 2 WLR 1232). By these holdings the Court of Appeal and the House of Lords respectively have come to recognise privacy as a value which underpins human dignity and individual freedom and which the law ought to protect. They are considered below in part 6. On the other hand, the Court of Appeal has determined that there is no independent tort of spoliation of evidence, by destroying or withholding evidence which is relevant to the plaintiff’s case in existing or forthcoming litigation (Burns v National Bank of New Zealand Ltd [2004] 3 NZLR 289).
Recognition of a new tort could not be justified, because:

• alternative remedies are available, including sanctions in the High Court Rules and disciplinary and criminal proceedings;
• in many cases the fact of damage will be irreducibly uncertain;
• the tort is potentially inconsistent with the policy favouring final judgments and may lead to inconsistent decisions; and
• lawyers may be placed in a position of conflict by owing duties both to their client and to an opposing party.

The existence of a tort also has been rejected in Victoria (British American Tobacco Australia Services Ltd v Cowell [2002] VSCA 197) although a claim has been allowed to proceed to trial in Canada (Spasic Estate v Imperial Tobacco Ltd (2000) 188 DLR (4th) 577 (Ont CA); cf Endean v Canadian Red Cross Soc (1998) 157 DLR (4th) 465 (BCCA)). So also, in another recent example, a court in England has held that there is no separate tort of wrongful interference with a body (In Re Organ Retention Group Litigation [2005] 2 WLR 358). There might sometimes be a cause of action for conversion by appropriating body parts, and where a claim for negligence could arise there was no reason or justification for constructing another cause of action which was not subject to the various common law controls inherent in any claim in negligence.

Recognition of a new tort of invasion of privacy by the New Zealand Court of Appeal, and the extension of the action for breach of confidence by the House of Lords, are only two of a large number of important decisions made in recent times by the courts in
New Zealand, England, Australia and Canada. They have examined, inter alia, the following matters:

• whether a barrister’s immunity from suit for negligence in the conduct of litigation ought to be retained (Lai v Chamberlains (CA 17/03, 8 March 2005), D’Orta-Ekenaike v Victoria Legal Aid ([2005] HCA 12, 10 March 2005));
• whether the restrictions on recognising a duty of care laid down by the House of Lords in mental injury cases can be justified Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2003) 211 CLR 317 (HCA));
• the ambit of the duty of care owed by a builder or engineer to a non-contracting third party (Woolcock St Investments Pty Ltd v CDG Pty Ltd (2005) 216 CLR 515 (HCA); Rolls Royce New Zealand Ltd v Carter Holt Harvey Ltd [2005] 1 NZLR 324 (CA);
• the proper basis for a duty of care in cases involving negligent statements (Attorney-General v Carter [2003] 2 NZLR 161 (CA));
• whether the birth of a child as a result of a failed sterilisation operation can be seen in law as a “loss” (Cattanach v Melchior (2004) 215 CLR 1 (HCA); Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309 (HL));
• whether a local authority or health authority can owe a duty to a victim of suspected child abuse and also to the suspected abuser (B v Attorney-General [2004] 3 NZLR 145 (PC); D v East Berkshire Community Health NHS Trust [2005] 2 WLR 993 (HL);
• whether a public body should be liable to pay public law compensation for a breach of the New Zealand Bill of Rights Act 1990 in addition to common law damages or where there is no right to claim damages (Dunlea v Attorney-General [2000] 3 NZLR 136 (CA); Brown v Attorney-General (CA 39/03, 3 March 2005));
• the meaning of the element of “non-natural use” in the rule in Rylands v Fletcher (Transco plc v Stockport Metropolitan Borough Council [2004] 2 AC 1 (HL));
• whether the rule in Wilkinson v Downton has outlived its usefulness and ought now to be abandoned (Wainwright v Home Office [2004] 2 AC 406 (HL));
• the extension of the defence of qualified privilege in actions for defamation to cover publications by the media (Lange v Atkinson [2000] 1 NZLR 257 (PC), [2000] 3 NZLR 385 (CA); Reynolds v Times Newspapers Ltd [2001] 2 AC 127 (HL);
• modifications of the normal rules of causation, including whether, instead of the need to prove on the balance of probabilities that the defendant caused an outcome, it is sufficient to prove that he or she caused a risk of loss (Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 (HL)), or caused the loss of a chance (Benton v Miller & Poulgrain [2005] 1 NZLR 66 (CA); Gregg v Scott [2005] 2 WLR 268 (HL), or caused a loss of autonomy (Chester v Afshar [2005] 1 AC 134 (HL));
• whether an employer or principal may be vicariously liable for sexual abuse committed by a servant or agent (Lister v Hesley Hall [2002] 1 AC 215 (HL)), S v Attorney-General [2003] 3 NZLR 450 (CA); W v Attorney-General (CA 227/02, 15 July 2003);
• whether exemplary damages may be awarded in cases of negligence (A v Bottrill [2003] 1 AC 449 (PC)) or against a vicariously liable defendant (S v Attorney-General; W v Attorney-General);
• whether the date on which a cause of action in tort accrues is the date of the act, or the date of the damage, or the date when the damage or its cause is reasonably discoverable.