Dear Colleagues;
Some end of year tort decisions from the High Court of Australia; 3 in 2 days, actually. Briefly:
1 & 2: Two decisions were actually more about costs than substantive liability issues. In Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56 (12 December 2012)
http://www.austlii.edu.au/au/cases/cth/HCA/2012/56.html the question was whether an action for battery was an action for "personal injury damages". If it was, then the amount of costs that could be charged under older NSW legislation was limited to $100,000. The debate arose because the definition in the legislation governing costs defined the term as follows: "personal injury damages has the same meaning as in the Civil Liability Act 2002". Two competing interpretations were available: in one, the precise definition of the term would be adopted from the CLA, in which case it clearly did include an intentional battery as well as an act of negligence. The competing interpretation was the costs legislation meant that it only applied to actions covered by the provisions of the CLA limiting damages, which generally did not include intentional torts.
By majority of 3-2 the HC held that the specific words of the definition should be adopted, rather than the "broader" view. So the costs cap applies even to cases of intentional battery.
In New South Wales v Williamson [2012] HCA 57 (12 December 2012)
http://www.austlii.edu.au/au/cases/cth/HCA/2012/57.html the same approach to interpretation was to be followed under a newer form of the costs provision. However, and this is the main interesting torts principle in the case, since the claim in Williamson was a combined claim for false imprisonment as well as for battery, and since there was no way to determine how much of the damages award was for one or the other, as a whole it could not be said to be an award for "personal injury". At [34] two of the majority judges said:
"the claim for false imprisonment was necessarily a claim for damages on account of the deprivation of liberty with any accompanying loss of dignity and harm to reputation. The deprivation of liberty (loss of dignity and harm to reputation) is not an "impairment of a person's physical or mental condition" or otherwise a form of "injury" within s 11 of the Liability Act. The claim for false imprisonment, at least to the extent to which it sought damages for deprivation of liberty, is not a "claim for personal injury damages"."
So "false imprisonmenr" as a tort deals with a different sort of harm than bodily injury.
3. The third case was Newcrest Mining Limited v Thornton [2012] HCA 60 (13 December 2012)
http://www.austlii.edu.au/au/cases/cth/HCA/2012/60.html. To summarise, the issue was whether, under a common form of the legislation governing recovery against joint tortfeasors, where a first claim had been resolved by a consent judgment issued by a court, did that set the maximum amount of recovery that was available in later claims against other joint tortfeasors? The legislation restricted overall recovery to no more than "the amount of the damages awarded by the judgment first given". A 3-2 majority held that this phrase was not apt to describe a consent order- that no "award" proper had been made in that case- and hence that the plaintiff could seek to recover a higher amount against the second tortfeasor.
Regards
Neil
Neil Foster
Associate Professor,
Newcastle Law School;
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
MC158, McMullin Bldg
ph 02 4921 7430
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