Date: Sat, 12 Feb 2005 14:37:18 +1100

From: Harold Luntz

Subject: Remoteness in Intentional Torts

On the theme of remoteness: Does anyone know of any interesting discussions, judicial or academic, of the remoteness rule/s for intentional torts?

Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69; (2001) 208 CLR 388 per Gummow J:

65 What was said by this Court in Gould and Gates should not be taken as deciding that reasonable foreseeability is a requirement for the recovery of damages in an action for deceit. For the reasons that follow the question left open in those cases should now be answered, in line with Doyle and Smith, so as to deny the applicability of reasonable foreseeability as a means of limiting liability in the tort of injurious falsehood.

66 It should be observed that the development of the concept of "reasonable foreseeability" responded to the difficulties in supplying a boundary to the damage for which the defendant should be liable in actions for negligence[32] and nuisance[33]. Prior to the expansion of the law of negligence with its notion of reasonable foreseeability, the law with respect to intentional torts had developed satisfactory means of limiting a defendant's liability, without the need to resort to that notion. ...

80 The appellant is correct in its submission that reasonable foreseeability is not a part of an action for injurious falsehood. However, this success does not assist the appellant's case. This is because the appellant cannot establish that the respondent "intended" the injury suffered by the appellant. Neither can the appellant establish "presumed intention" by showing that the injury suffered was "the natural and probable result" of the respondent's conduct.

Harold Luntz.

Professorial Fellow,
Law School,
The University of Melbourne,
Victoria, 3010,
AUSTRALIA.

Home address: 191 Amess St,
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