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Employees
Who is an employee?
A term used by parties to describe their relationship is not definitive in nature and a court must decide as a
matter of law: Narich v Commissioner of Pay-roll Tax (1983).
A prominent factor in determining the nature of the relationship is the degree of control which the employer
can exercise over the employee: Stevens v Brodribb.
Other relevant matters include the mode of remuneration, the provision and maintenance of equipment, the
obligation to work, the hours of work and provision for holidays, the deduction of income tax and the
delegation of work by the putative employee: Stevens v Brodribb.
It is the right to control rather than the actual exercise which is the important thing: Zuijis v Worth Bros.
When will an employer be liable for employees?
Personal duty of care
An employer has a duty towards employees to take reasonable care to carry on operations so as not to
subject employees to unnecessary risk or injury: Bankstown v. Braistina.
This is established by precedent and covers the:
- Provision and maintenance of proper plant, appliances and works: Davie v New Merton Board Mills;
- Proper selection of skilled persons to manage and superintend: Wilson v Tyneside Window Cleaning;
- Provision of a safe system of work: Kondis v State Railway Authority (1984).
Proper plant
The employer is not liable where the negligence is that of a reputable manufacturer and the defect is not
discoverable by reasonable care: Davie v New Merton Board Mills.
Selection of staff
The employer is required to exercise reasonable care and skill in the selection of competent supervisory
staff: Wilson v Tyneside Window Cleaning.
System of work
Once an employee establishes an alternative system, which may have removed the risk if implemented, the
onus is on the employer to show that it was impractical or unenforceable: McLean v Tedman (1984).
The non-delegable aspect of that duty is to ensure that the contractor takes care e.g. to set up a safe system
of work: Kondis v. State Transport Authority (1984)
If an employee is injured through his or her own negligence then the employer may be liable because it
breached its personal duty of care e.g. failure to provide a safe system of work: Bankstown Foundry v
Braistina (1986).
Delegation of the personal duty of care
The employer’s personal duty may, in very clear circumstances, be delegated to the employee who is
subsequently injured by his or her own negligence.
- The delegation must be by mutual agreement.
- The employee must be properly skilled and an appropriate delegate.
- The whole of the aspect of the duty must be delegated.
- The employee must be injured by reason of his or her own failure to properly fulfill the delegated task.
Witham v. Shire of Bright.
Damage
Causation and remoteness: Quigley v. Cth.
Vicarious liability
An employer may be liable vicariously to a third party for the acts of negligence of employees: Darling
Island Stevedoring v Long (1957).
An employer may also liable also for injuries resulting from the negligence of fellow employees (failure to
provide a safe system of work): Bus v. SCC (1989). In this case it may be vicarious or personal.
In such cases the employer and employee are joint tortfeasors: Darling Island Stevedoring v Long.
To establish vicarious liability
1. The existence of an employer/employee relationship between the defendant and tortfeasor.
2. The commission of a tortious act by the employee.
3. The tortious act must have been committed in the course of employment.
An act or omission is in the course of employment if it is either a wrongful mode of committing an
authorised act or a wrongful act authorised by the employer. It must be reasonably incidental to what
employed to do.
If an employee takes an opportunity during employment to use time or resources for personal purposes, for
example, substantially deviating from a business route for private purposes, the employer is not liable:
Storey v Ashton (1869). This is known as the frolic doctrine.
If the employee is engaged on the employer's business and on personal business at the same time, the
employer may still be liable: Century Insurance v Northern Ireland Road Transport [1942].
An express prohibition by the employer of a wrongful act will not necessarily be a defence to the employer
if the employee's act was still a mode of doing what the employee was employed to do: Rose v Plenty
[1976].
Where an employee commits a willful tort during the apparent course of employment, the motive of the
employee in furthering either the employer's or his or her own personal interests is important: Deatons v
Flew (1949).
Independent contractors
The general rule is that a party is not liable for the tortious acts of an independent contractor, even if the
contractor was undertaking duties for that party: Stevens v Brodribb Sawmilling (1986).
However, an employer may be held liable if the contractor's actions breach a personal or non-delegable duty
of care: Kondis v State Railway Authority (1984).
One such event is where several contractors are working together and general safety precautions are
required to cover the whole work site or integrated systems, the general employer will be liable for failure to
institute a safe system: McArdle v Andmac Roofing [1967].
In such a case, the provision of the system may be regarded as a non-delegable duty: Kondis v State
Transport Authority; Stevens v Brodribb.
Creation of a non-delegable personal duty of care to third parties:
The person on whom it is imposed has undertaken the care, supervision or control of the person or property
of another or is so placed in relation to that person or property to assume a particular responsibility for his
or her safety, in circumstances where the person affected might reasonably expect that due care will be
exercised: Kondis v State Railway Authority.
However, a non-delegable personal duty may not be held where the injury resulted from a failure of a
specific system of work within the contractor's own responsibility: Stevens v Brodribb.
Non-delegable duties
- Operations on or near a highway: Holliday v National Telephone [1899];
- Occupier of land held liable to contractual entrants: Francis v Cockrell (1870);
- Hospitals to patients: Samos v Repatriation Commisison [1960];
- Schools to students: Cth v Introvigne (1982).
Other relevant matters
The loan of servant by one employer to another
Where an employee is lent by one employer to another, the employer who retains control will be liable and
the onus is on the lending employer: McDonald v Cth (1945). Look at intention of parties to pass control.
Contract of service (employee) vs Contract for services (contractor).
Defences
Contributory negligence: Law Reform Act 1995 (Qld).
Voluntary assumption of risk (volenti non fit injuria):
The defence cannot be sustained unless the plaintiff, with full knowledge of the risk, had expressly or by
implication agreed to waive the right to redress, that is, an assumption of the legal as well as physical risk:
Smith v Charles Barker & Sons [18191].
All reasonable precautions taken to eliminate unnecessary risks: Caledonian v Spiers (1957).
This relates to a failure to breach the standard of care.
Workers Compensation Legislation
WorkCover Queensland Act
Definition of injury
- current = employment is “the major significant factor causing the injury”
- recent change = “a significant contributing factor causing the injury” effective from 1 July 1999
Definition of a worker,
- current = an individual who works under a contract of service and is a PAYE employee
- recent change = just contract of service effective from 1 July 2000
Restriction on common law access
- compensation for work-related impairment of less than 20%
- must irrevocably choose to either accept the WorkCover lump sum entitlement or sue the employer at
common law
All common law actions against employers are now subject to chapter 5 - ‘ Access to Damages’- which
modifies the common law in regard to
- nature of liability;
- nature and quantum of damages;
- orders as to costs;
- procedural matters.
E.g. liability
- if common law action is based on the failure to provide a safe system of work, must prove that the
employer “made no genuine and reasonable attempt” to put such a system in place;
- that the event giving rise to the injury was not solely as a result of “inattention, momentary or
otherwise, on the worker’ s part”.
Note
The aim of workers compensation is not the same as that of the common law. It is not to put the worker
back in the position s/he would have been in if the accident had not occurred. It is designed to alleviate only
certain of the losses suffered by employees as a result of workplace accidents.
Breach of Statutory Duty
Duty imposed on defendant by statute not by common law as in a negligence action.
6 Elements:
1.
Civil right of action is created by statute: Tucker v McCann
2.
The defendant is the person upon whom the duty was placed: Darling Island Stevedoring
3.
The plaintiff is a person for whose protection the statute was created to prevent: Concrete
Constructions v. Nelson
4.
The damage suffered by the plaintiff is of the kind the statute was created to prevent: Gorris v.
Scott
5.
The defendant was in breach of the duty created by the statute: Waugh v. Kippen
6.
The breach of the statute caused the plaintiff’s injury: Waugh v. Kippen
Defences:
ICI v. Shatwell
Contributory negligence
Volenti non fit injuria
Delegation of statutory authority (not always refered to as a defence)
JIE not available
Damages
Types of damages
Nominal
Where a plaintiff has proved a violation of a legal right without any consequent actual damage. Usually
carries with it the costs of the action.
Contemptuous
Damages awarded to unmeritorious plaintiffs who are nevertheless entitled to succeed. Unlikely to receive
costs of action.
Exemplary
Also described as punitive or vindictive damages. The function is partly punitive and partly deterrent: Uren
v John Fairfax (1966).
Compensatory
To compensate for actual damage. Comprises of special and general damages.
Aggravated
A form of compensatory damages which are awarded because the defendant's reprehensible conduct
aggravated the injury to the plaintiff.
Fundamental Principles
 eggshell skull rule;
 once and for all rule;
 lump sum rule;
 duty to mitigate;
 the indemnity principle - so far as $$$ is able.
Eggshell Skull Rule
Eg Medlin v. SGIO
the voluntary premature retirement of the Professor of Philosophy.
D must take P as that part is found with all weaknesses, beliefs, capacities and attributes.
Once and For All
 Eg Griffiths v. Kerkemeyer
 at the time of trial, cared for by family and fiancee;
 gratuitous care;
 diability giving rise to the NEED for the care;
 paid to the plaintiff and now held in trust for the carer.
The Lump Sum Rule
 Eg Sharman v. Evans
 aged 20 at time of MVA and became quadriplegic, with epilepsy, brain injury, pain etc and fully aware
of her loss.
 no procedure for future review or for staggered payments at common law or in Queensland.
 The sum awarded in most cases will be wrong (ie too little) - only certainty.
Duty to Mitigate
 Eg Boyd v. SGIO (1978)
 failure to agree to a blood transfusion, because of parents belief was unreasonable (sort of contradicts
the eggshell skull principle).
 burden of proof on the defendant;

plaintiff can recover costs associated with mitigation even if it fails.
The Indemnity Principle
 The pecuniary sum which will put P in as near as possible position s/he would have been if s/he had not
been the victim of Ds wrongdoing:
 interest on sums up to date of judgement;
 vicissitudes of life taken into account.
 The is concern to prevent double dipping
 set offs;
 discount to take into account getting the amount in a lumpsum
 Eg Sharman v. Evans:
 para 20yo
 loss of earning capacity damages reduced
 => to the extent that the money would have been spent on living expenses
because that already covered by damages for nursing home expenses.
 Another example:
 P now has a reduced life expectancy and will die aged 45, would have
retired at 65 years:
 => will be compensated for the loss of earning capacity to the age of 65
years;
 => the amount P would have spent on living expenses between 45 and 65
years will be deducted because now P will not have that expense;
 => if likely to commit suicide there will be a further percentage reduction.
The Indemnity Principle
 Interest on damages awarded from date of cause of action arose to date of judgement;
 amounts already received may be set off unless they are required to be repaid;
 amount of damages may be discounted to take into account:
=> the fact that normally would not get the amount in a lump sum:
=> the vicissitudes of life.
Special Damages
Pecuniary
 hospital and medical expenses to date of judgment
 loss of earning capacity to date of judgment.
General Damages
Pecuniary
 future hospital and medical expenses
 future loss of earning capacity
 past and future Griffith v Kerkemeyer gratuitous services damages.

Non-Pecuniary
 past and future pain and suffering
 past and future loss of expectation of life
past and future loss of amenities or enjoyment of life.
Future hospital, medical and care expenses and needs:
A court must determine the appropriateness of institutional versus home health care and award damages on
the appropriate basis: Sharman v Evans.
Griffiths v Kerkemeyer
Calculation of home health care is by reference to the market value of those costs.
Loss of earning capacity
The court should take into account the likely duration of the disability, the probable duration of the
plaintiff's remaining work life and such things as prospects for promotion.
Future Earning Capacity
 Calculated by reference to what would have earned net and after expenses deducted:
 Wynn v. NSW Insurance
 should future childcare and housekeeping expenses be deducted?
 No because ‘essentially private or domestic in character’
 If would not have worked then no award.
 Very difficult to assess for younger people.
 The total is discounted to take into account the fact that it is received as a lump sum and can be
invested immediately.
 In Queensland the rate is set by s16 Supreme Court Act 1995 at 5%.
 The investment option is also supposed to compensate for future inflation.
 The amount may be further reduced to take into account the vicissitudes of lefe.
 Malec v. Hutton
 Wynn v. NSW Insurance
Hospital, medical and care
 Medicare subsidies will have to be repaid to the government for past expenses.
 There is some authority that inflation may be taken into account for future expenses but today would
probably be regarded as too speculative.
Care Expenses
 In recent years the most contentious area has been the Griffiths v. Kerkemeyer component for gratuitous
care.
 Van Gervan v. Fenton 1992 HC
 Lynch v. Lynch 1991 NSWCA
 Kars v. Kars 1997
Van Gervan v. Fenton
 Ps wife provided gratuitous care for her husband who injured by Ds negligence;
 gave up full time job as a nurses aid
 at first instance and on appeal damages were assessed based on her loss of wages minus travelling
expenses
 P successful in appeal to HC
 the market cost, as a general rule, is the amount to which the defendant must pay as
damages...in some cases the market cost may be too high...the case will be rare indeed where
income forgone by the carer will be the appropriate rate.
Lynch v. Lynch
 P was seriously injured in a MVA
 Her mother was both the driver/D and the gratuitous carer
 Common law rule that could not recover because then the tortfeasor would be paying twice, once in
kind and once in money
 but D was compulsorily indemnified by the third party insurer.
Kars v. Kars
 The same situation arose in Queensland with P being the wife and d being the driver in the MVA and
the gratuitous care.
 HC unanimously dismissed the appeal by D (insurance company).

A review of the relevance of insurance to the common law development of liability in tort may be
relevant and timely.
 The problem for this principle operating outside the area of compulsory insurance is more apparent that
real.
 Need to protect P against the vicissitudes of life ie husband unable to care for her.
Griffiths v. Kerkemeyer
 Kars v. Kars: we prefer to reduce the anomalies and absurdities
 But:
 Queensland - severely reduced in work place actions because of WorkCover.
 Victoria - abolished for MV or work place actions
 Tasmania - abolished entirely.
 NSW, SA & WA limited quantification.
Non-pecuniary loss
 With non-pecuniary dmages generalyy, the trend is towards standardisation.
 But for past and future pain and suffering the award is entirely subjective so if unconscious P receives
nil
 Generally see => Sharman v. Evans and Skelton v. Collins
 for past and future loss of expectation of life, subjective and ibjective components with a standardised
sum for the objective.
For past and future loss of amenities it is the same but for the objective it is minimal because of overlap
with loss of expectation and often combined.
In regard to the assessment of the above heads of damage:
 interest may be included in the assessment of special damages and in damages for past pain and
suffering, see Supreme Court Act 1995 s47 and Camm v Salter [1992];
 it is not necessary to prove possible future losses on the balance of probabilities, see Malec v Hutton
 the court will take into account the vicissitudes of life and may proportionally reduce damages
accordingly, see Malec v Hutton;
 pecuniary damages may be reduced to the extent that the plaintiff has benefited from the defendant's
wrongdoing, ie, the benefit may be set-off in the assessment of the damages;
 damages for loss of future earning capacity will be discounted; in Todorovic v Waller (1981 the HC set
the discount rate at 3%, thereafter the Queensland government set the rate of 5% in the Supreme Court
Act, s16.
 damages for loss of future earning capacity are calculated net of taxation payable thereon: Supreme
Court Act 1995 s15.
Interest
 Is paid on monies awarded to date of judgement;
 In Queensland:
 the rate is discretionary - the Supreme Cout Act 1995 s.47
 for pecuniary loss the usual rate is half the commercial rate ie about 6%
 for non-pecuniary loss the usual rate is one quarter of the commercial rate ie about 2-3%
Set Off’s
 Monies paid by employer as sick pay and workers compensation payments will be set off (ie deducted)
from the damages award.
 Social security and medicare payments must be repaid to government and so will not be set off.
 Charity intended to benefit the Plaintiff will not be set off.
Survival of Actions
In Queensland s66 of the Succession Act 1981 allows, in some circumstances, the deceased plaintiff's estate
to bring an action to recoup losses to the estate caused by the defendant's tortious conduct. Similarly, in
some circumstances, where the defendant dies, s66 allows the plaintiff to seek recovery from the deceased's
estate or the beneficiaries of the deceased's estate.
Compensation to Relatives
In Queensland, ss17-23 of the Supreme Court Act allow specified relatives of a deceased to bring an
action against a tortfeasor who caused the deceased's death, see Nguyen v Nguyen and Jones v
Schiffmann. Recently, as a result of the Moura mine disasters and public pressure, de facto spouses were
included in the specified relatives in s18 of the Act.
Economic loss
Negligent Misrepresentation
Identify the possible actions, parties and possible representations.
Hedley Byrne v Heller (1964)
no need to establish a contractual or fiduciary relationship
person giving the information must be possessed of special skill (or hold themselves out as having such
skill)
assumption of responsibility by the speaker
reasonable reliance by plaintiff
no disclaimer of responsibility
Position in Australia
MLC v Evatt (High Court)
Accepted that duty of care could arise irrespective of contract or fiduciary relationship.
Barwick CJ identified features of special relationship which would give rise to duty of care
Elements
What constitutes a misrepresentation?
A statement of such a character as to give rise to in the plaintiff a reasonable reliance thereon: San
Sebastian.
Silence: Failure to provide information or advice when it ought to have been realised that the plaintiff was
relying on the defendant to provide more than what was actually implied: MLC v. Evatt.
Duty of Care?
- Pure economic loss claim, not an established category, use the incremental approach; Hill v. Van Erp.
Need to establish a ‘special relationship’; Hedley Byrne v. Heller; San Sebastian; MLC; Shaddock.
- Prove that the defendant knew or ought to have known that they were being trusted by the plaintiff to
give advice or info, believing the defendant to have the capacity to do so and that the information or
advice is of a serious or business nature.
- Prove that the defendant knew or ought to have known that the plaintiff intended to rely on the advice
or information.
- Prove that it was reasonable for the plaintiff to have relied on the advice or information.
- Duty of care extends only to persons to whom information or advice was passed to directly or through
an intermediary and who the defendant knew or ought to have known, would have placed reasonable
reliance on the information or advice.
- Consider whether there was an express disclaimer by the defendant
- MLC v. Evatt
Breach
The duty is not to mislead, so it is a question of fact whether the person was misled.
Damage
Causation and Remoteness
Subsequent High Court Decisions
Shaddock v Parramatta City Council (1981)
No requirement that speaker be possessed of special skill (not necessary to decide in this case).
San Sebastian (1986)
Determined that reliance was the most significant element in establishing proximity.
No requirement that statements made in response to request for information or advice.
Esanda Finance Corporation Ltd v Peat Marwick Hungerfords 1997 High Court decision confirms
approach adopted in MLC v Evatt and San Sebastian.
Fraudulent Misrepresentation (Deceit)
Elements
Representation of fact: Palsey v Freeman (1789).
- Objective, reasonable person test.
- May be misrepresented by oral or written words or may be conveyed by conduct: Horsfall v Thomas
(1862).
- As a general rule, silence or mere failure to disclose the truth cannot amount to a misrepresentaion:
Peek v Gurney. But note possibility of a half-truth.
- If a statement is true when made, but later found by the representor to be false, the party should
communicate this fact to the representee to avoid the possibility of a misrep of fact through changed
temporal circumstances: Jones v Dumbrell [1981].
- Also if what is not said gives a deceptive meaning to what is said.
Defendant knew representation was false or was recklessly indifferent (Scienter)
- Prove that the defendant knew the representation to be false, or made it recklessly, not caring if it was
true or not. However, mere carelessness is not enough.
- Derry v Peek
Defendant intended plaintiff to rely on the misrepresentation
- Plaintiff need only belong to the class of persons which the representor intended to rely upon:
Langridge v. Levy.
Plaintiff did rely on the representation: Edgington v Fitzmaurice.
- The plaintiff must have been induced by the misrepresentation: Horsfall v. Thomas.
Plaintiff suffered damage: CBC v Brown
- Must be a direct and foreseeable consequence.
Remedies
Damages, compensatory: Broome v Cassell & Co; aggravated: Archer v Brown; exemplary: Musta v Astle
Cork.
The plaintiff has a duty to mitigate: Lucus v. Centrepoint Freeholds.
Pure Economic Loss other than by misrepresentation
As a general rule, pure economic loss is not recoverable in a negligence action: Caltex Oil.
Three further categories of case involving pure economic loss in which a duty of care has been found to
exist.
(i)
Economic loss resulting from damage to the property of another, see Caltex Oil, Christopher and
Ball v Consolidated Rutile.
(ii)
Failure of a professional person to perform an undertaking or service properly, see Hawkins v
Clayton, Hungerfords v Walker (1988), Hill v Van Erp, and Astley v Austrust (1999).
(iii)
Defective buildings, see Bryan v Moloney.
Hill v Van Erp modified the approach to the finding of a duty of care in cases of pure economic loss. The
existence of a duty of care may be recognised provided specified additional elements, over and above the
requirement of reasonable foreseeability, could be shown to exist in the particular case, having regard
always to relevant policy considerations.
Approach to problems involving recovery for pure economic loss:
- Identify the relevant facts (a diagram may assist)
- Who are the parties (identify each parties interests and the relationship between the parties if any)
- Identify the damage suffered by each party
- Classify the damage (physical damage, consequential economic loss, pure economic loss)
- Consider any policy arguments against recovery in the particular case
- What factors in addition to reasonable foreseeability will the plaintiff be required to prove (identify the
particular category of case and refer to decided cases).
There is no doubt that economic loss may be recovered if such loss is a consequence of some physical
damage to person or property.
Example of difference between consequential loss and pure economic loss.
Consider the case where A negligently damages power cables belonging to B and thereby interrupts the
power to C's business. If C suffers physical damage to plant or materials, for example, if molten metal
solidifies, C may recover not only the value of the items physically damaged but also for the economic loss
(for example, loss of profits) consequential upon the physical damage: SCM v Whittal [1971]. But where
the loss of power caused no physical damage but only purely economic loss, for example, the loss of profit
alone due to the unavailability of power, without any physical damage, no duty was normally owed or the
damage was said to be too remote: Electochrome v Welsh Plastics [1968].
Caltex Oil v The Dredge Willemstad per Mason: A defendant will become liable for economic damage due
to his negligent conduct when he can reasonably foresee that a specific individual, as distinct from a general
class of persons, will suffer financial loss as a consequence of his conduct.
Bryan v Moloney: A duty is owed by a builder to a subsequent purchaser in respect of the economic loss
sustained as a result of defective building work, at least for a domestic dwelling.
Other tortious actions
Interference with contractual relations
At common law, an action on the case lies against a person who induces another to break a contract with the
plaintiff: Lumley v Gye (1853).
Elements of the tort:
- a valid existing contract;
- actual/constructive knowledge of the contract: Short v City Bank of Sydney (1912);
- intentional interference;
- breach of, or interference with, a term of the contract;
- damage.
Intention but not malice is required: Quinn v Leathem [1901].
Interference may be committed by direct means or by indirect means.
The wrongful or unlawful interference carried out with the intention of procuring a breach must in fact
result in breach of contract: Allen v Flood [1898].
The breach of contract must result in damage to the plaintiff: Jones v Stevens [1955].
Defences
It is a good defence for the defendant to prove that he or she was acting as the servant of the party who
broke the contract, the master is vicariously liable: Said v Butt [1920].
Justification: interference by one party under a legal or moral duty may be sufficient: Brimelow v Casson
[1924].
Remedies
Damages at large: Lumley v Gye. Compensatory, exemplary or punitive, even compensatory for injured
feelings.
Conspiracy
At common law, where two or more persons willfully combine to do an act intended to injure another in that
other's business or other economic interests, and damage is in fact caused to such interests, it is unlawful
and actionable as conspiracy unless there is just cause or excuse: Latham v Singleton [1982].
The action requires
- an agreement between two or more persons;
- with the intention of causing injury to plaintiff;
- by what is otherwise a lawful act
or by an unlawful act;
- the actual implementation of the conspiracy;
- P suffered (or will suffer) damage as a result of the conspiracy.
Defences
Justification; legitimate competition on the labour market: Allen v Flood [1898].
Remedies
Damages; Injunction including interlocutory.
Defamation


1.
2.
3.
4.
What interests are protected by defamation law?
 Individual reputation vs freedom of speech.
What are the sources of defamation law?
 No uniform law across Australia.
 Queensland:
 Completely codified (Criminal Code that is of 1899)
 1995 amendments to Code put defamation back in the Defamation Act 1889.
 Other Australian jurisdictions:
 Tas: code provisions
 NSW: mixture - Common law for action (currently have a Bill); defences statute.
 Others have common law with variation by statute.
 WA: similar code to Qld but Common Law applies
=> WA Newspapers v. Bridge per Jacobs J
Identify the relevant jurisdiction (Qld or CL)
Identify the possible defendants.
Identify the potentially defamatory imputation:
 Do they arise from the ordinary and natural meaning of the words?
 Do they arise by innuendo?
Define defamation
Statute s5.(1) Defamation Act
 Any person who by spoken words or audible sounds, or by words intended to be read either by sight or
touch, or by signs, signals, gestures, or visible representations, publishes any defamatory imputation
concerning any person is said to defame that person.
Common Law - Libel and Slander
 At common law, defamation comprises of two torts:
 Libel: defamation in a permanent form e.g. printed matter, reading from printed matter,
Braille, parrot, radio broadcasts (Church of Scientology v. Anderson), motion pictures
(Youssoupoff v. Metro-Goldwyn - Mayer).
 Slander: defamation in a transient form e.g. gestures, sign language, live plays, radio outside
of legislation, skywriting.
 Libel actionable per se.
 Slander generally requires special damage:
 not confined to monetary loss, must be material eg withdrawal of hospitality.
 Exceptions:
 Imputation of crimes punishable by imprisonment;
 Disparaging person in office, profession, trade etc.;
 Allegation of infectious or contagious disease;
 Statute (not in Qld) imputation of unchastity in women.
 No distinction between libel and slander is made in Queensland
=> s 5 Defamation Act 1889
 Defamation actionable per se.
5. State the elements
What is Defamation?
 Three elements:
1. Defamatory matter.
2. Reference to the plaintiff.
3. Publication.

6.



Number of defences available.
Defamatory Matter
Common Law
 matter “of a kind likely to lead ordinary decent folk to think less of the person about whom it
was made” => Boyd v. Mirror Newspapers
Queensland
 s(4). Any imputation concerning any person, or any member of the person’s family, whether
living or dead, by which the reputation of that person is likely to be injured, or by which the
person is likely to be injured in the person’s profession or trade, or by which other persons are
likely to be induced to shun or avoid or ridicule or despise the person, is called “defamatory”,
and the matter of the imputation is called “defamatory matter”
 s 4: Likelihood of:
 injury to reputation; OR
 injury to plaintiff’s profession or trade; OR
 other persons induced to shun, or avoid, or ridicule or despise the plaintiff.
Standard - Objective test CL and Qld
 Judged by the standard of a “hypothetical referee”: Readers’ Digest v. Lamb.
 Variously described as:
 reasonable man;
 right thinking members of society;
 ordinary man not avid for scandal.
 Knowledge of additional facts and circumstances
 Not sufficient to show discredit before a restricted class:
Byrne v. Deane
c/f Krahe v. TCN Channel Nine
 Intention of the defendant irrelevant: Queensland Newspapers v. Baker
Interpretation of Defamatory Matter
 Common Law:
 Natural and ordinary meaning.
 Innuendo:
 False innuendo: providing you can add two and two together
 True innuendo: a statement that nobody could possibly read anything into
eg Cassidy v. Daily Mirror [1929]
 Queensland:
 Section 4(1) of the Defamation Act:
 (2) Imputation may be expressed either directly or by insinuation or irony:
Composite Buyers v. Clarke
 Role of Judge and Jury
 Common Law:
 Judge:
 Is the statement capable of bearing the defamatory meaning alleged?
 Jury:
 Did the statement actually have the defamatory meaning.
 Queensland:
 Section 18 Defamation Act follows the common law.
 Protection of Personal and Business Reputation
 Common Law:
 Attack on business must be attack on plaintiff’s reputation:
Fairfax v. Punch
Boyd v. Mirror Newspapers
 Queensland:
 s 4 Defamation Act includes:


7.




8.


likely injury to the plaintiff’s profession or trade
Boyd v. Mirror Newspapers
Gibbs v. Dunn
Extends to virtually any legitimate calling:
Queensland Newspapers v. Baker
Reference to the Plaintiff
Common Law and Queensland:
 Material must be reasonably referable to the plaintiff.
 Test:
 Would a reasonable person having knowledge of the relevant circumstances
understand
 that the material reasonably referred to the plaintiff?
Hulton v. Jones
 Question of fact for the jury.
Who may be defamed?
 Common Law and Queensland:
 Any living person.
 Reputation of a living plaintiff may be injured by defamation of deceased
person.
 Action does not survive the death of plaintiff or defendant.
 Includes corporations.
 Not unincorporated associations.
 Not organs of Government.
Identification of the Plaintiff
 Need not be by name.
 May come from knowledge of extrinsic facts.
 Intention of the defendant not relevant: Hulton v. Jones
 May be named in other publications:
 Subsequent publication by defendant.
 Earlier publication by third party.
Defamation of a group
 Class as a whole will never have right of action.
 Members of class defamed may have action subject to:
 Size of class;
 Generality of the charge made.
Bjelke-Peterson v. Warburton
Publication
Common Law:
 The defamatory matter must be made known to at least one other person other than the
plaintiff.
 What constitutes publication?
Queensland:
 Section 5(2)
 Publication is, in the case of spoken words or audible sounds, the speaking of such
words or making of such sounds in the presence and hearing of any other person
other than the person defamed, and in the case of signs, signals, of gestures, the
making of such signs, signals, or gestures, so as to be seen or felt by, or otherwise
come to the knowledge of, any person other than the person defamed, and in the case
of other defamatory matter, the exhibiting of it in public, or causing it to be read or
seen, or showing or delivering it, or causing it to be shown or delivered with a view
to its being read or seen by any other person than the person defamed.
Separate Tort Action
Injurious Falsehood
 Common Law:
 protects economic interests;
 actionable only if can prove pecuniary loss
 Ratcliffe v. Evans
 Requirements of the Tort:
 False statement of and concerning goods;
 Publication by defendant to third party;
 Malice on part of the defendant;
 Calculated to cause damage (objective test);
 Proof of particular loss as a result of the statement.
 Queensland:
 Included in Section 4 of the Defamation Act:
 Defamatory matter includes any imputation concerning any person...by which the
person is likely to be injured in the persons profession or trade.
Benefits of Action in Defamation Over Action for Injurious Falsehood
 Plaintiff does not have to prove special damage:
Hall-Gibbs Mercantile Agency Ltd v. Dunn (1910) 12 CLR 84
 Plaintiff does not have to show defendant that the statement was false.
 Plaintiff does not have to show defendant motivated by malice.
Defences to Defamation
 Triviality
 Queensland:- Oral defamation
 Section 20 of the Defamation Act:
 In any case other than words intended to be read, it is a good defence to an
action for defamation...to prove that the publication was made on an
occasion and under circumstances when the person defamed was not likely
to be injured thereby.
 Consent
 Common Law:
 Complete defence: Crowley v. Glissan (No.2)
 Can be implied, but difficult to prove.
 must consent to particular form of publication.
 Queensland:
 s16(1)(f) Qualified protection
 If the publication is made in good faith on the invitation or challenge of the
person defamed.
 Innocent Dissemination
 Common Law:
 Defence for innocent publishers of libel written by others if:
 Publisher must not have knowledge of the defamatory material; and
 Publisher not careless in failing to recognise it.
 Martin v. Trustees of the British Museum
 Queensland:
 ss 22,25, 26, and 27 of Defamation Act:
 Protection extends only to sellers of books, newspapers, magazines and
periodicals.




 Protection extends to employers.
Justification
 Common Law:
 Truth is a complete defence, if it is true in substance and effect: Crowley v. Glissan..
 Queensland:
 Section 15 of the Defamation Act:
 Matter must be true AND publication must be for the public benefit:
(Bellino v. ABC), whether the public would benefit from the subject being
discussed publicly.
 Section 19 of the Defamation Act:
 Public benefit is a question of fact for the jury.
Fair Comment
Bjelke-Peterson v. Burns per McPherson J 131-33.
 Common Law:
 The statement must:
 Relate to a matter of public interest; AND
 Be comment (not fact); AND
 Be fair (honest, not malicious or illwill).
 To satisfy fairness:
 Factual matter must be true or privileged
 Comment must be objectively fair
 Must not be actuated or distorted by malice
 Lange v. ABC
 Queensland:
 Section 14(1) of the Defamation Act:
 The comment must fall under one of the categories in section 14.
 Section 14(2) Question of fact for the jury.
Absolute Privilege
 Common Law: Immunity attaches to the occasion: Hercules v. Phease
 Statements made in the course of parliamentary proceedings: O’Chee v. Rowley
 Statements made in the course of judicial (and quasi-judicial) proceedings: Mann v.
O’Neill.
 Communications between solicitor and client in relation to judical proceedings:
Watson v. McEwan.
 Communications between Ministers of State in the course of official duties: Isaacs
(M) & Sons v. Cook
 Communication between spouses: Wenhak v. Morgan.
 Queensland:
 ss 10, 11 and 12 of the Defamation Act:
 Protection is limited to:
 10.(1) A member of the Legislative Assembly for the publication in
Parliament.
 10.(2) A person presenting a petition to the Legislative Assembly;
 12. Publication in the course of proceedings in court, or in the
course of an inquiry;
 11. Statements made in an official report of an authorised inquiry.
Qualified Privilege
 Common Law:
 Where publisher has an interest or duty(legal, moral or social) to publish AND
 Recipient has corresponding interest or duty to receive it
 Reciprocity is essential; Watt v. Longsdon.
 Includes reporting of parliament and courts.
 see pages 449-50 of Gardiner & McGlone

Protection may be lost if:
 It can also be not actuated by malice: Horrocks v. Lowe.
 Extent of publication exceeds what is reasonably necessary.
 Queensland:
 Sections 13 and 17 Defamation Act:
 Section 13:
 Includes publication of reports of proceedings of:
 a) Parliament;
 c) courts;
 d) commissions;
 e) government departments;
 e) police;
 f) council meetings
 g) public meeting.
 Publication is lawful if made in good faith for the information of the public.
 Section 13(2):
 publication is in good faith for the information of the public if:
 Publisher not actuated by ill will or any other improper motive;
 The manner of the publication is such as is ordinarily and fairly
used in the case of the publication of news.
 Section 17:
 Burden of proving absence of good faith lies on party alleging the absence.
 Section 16:
 s16(1) specifies occasion to which privilege attaches;
 Look at all of them
 publication must be made in good faith;
 s16(2) defines “good faith” for the purposes of this section:
 publication is relevant to the matters listed in s16(1) AND
 Publication does not exceed what is reasonably necessary for the
occasion AND
 Publisher not actuated by ill will or improper motive AND
 Publisher did not believe the defamatory matter to be untrue.
 Constitutional Protection
 Longe v. ABC
 Constitution implies right of freedom of political expression.
 Section 128:
 Common law privileges or statutory privileges inconsistent with
constitutional right are invalid.
 Necessary to extend the circumstances in which the defence of qualified
privilege will apply under common law where:
 The communication is about government or political matters AND
 The publishers conduct was reasonable AND
 publication was not actuated by malice.
Remedies
 Injunctions:
 Discretionary remedy;
 Mandatory Injuction:
 Requires a person to do something.
 Prohibitory Injuction:
 Restrains a person from committing or repeating an act.
 Interlocutory Injunction:
 Continues until hearing or further order.




Perpetual Injunction.
Reluctance to Grant Injunction
 Right to be heard by jury.
 Freedom of speech.
 Power exercised reluctantly and only in very clear cases:
 Shiel v. Trandmedia Production Pty Ltd
Damages:
 Primary remedy.
 Purpose to compensate the plaintiff for injury suffered to reputation, special loss of
business or long periods of depression..
 Determination by jury
 Types:
 Actual pecuniary loss;
 Damages to feelings as well as reputation;
 Aggravated damages;
 Exemplary or punitive damages;
 interest may be awarded.
Mitigation:
 Relevant factors include:
 apology/retraction s21;
 recovery in other actions in re the same matter;
 poor reputation;
 truth;
 absence of malice.
Private Nuisance
Private nuisance is the unlawful interference with a persons use and enjoyment of their land: Hardgrave v.
Goldman.
Elements
1. Legally recognised right- it must be a legally recognised right (see p489).
The only person who may sue in private nuisance is a person with a legally recognised interest in land, ie
must have a right to immediate occupation or possession: Malone v Laskey [1907].
2. The interest is a legally recognised right to be protected – Malone v. Lasky
There is no right to protection of a view.
There is no right to privacy.
3. There is an interference with the right – Munro v. Southern Dairies
Material damage to property
The interference must be so substantial as to cause harm: St Helens Smelting Co v Tipping (1865).
Interference with enjoyment
In relation to enjoyment, it must be an unreasonable and substantial interference: St Helens Smelting Co v
Tipping (1865).
Substantial
Not trifling and small inconveniences.
Injuries which sensibly diminish the comfort enjoyment or value of the property: St Helens Smelting v
Tipping.
Unreasonable
The onus is on the defendant to prove that the action is not unreasonable.
This is an objective test; is the interference incompatible with the ordinary comforts of human existence, not
merely elegant or dainty people, but plain and sober and simple notions of English people? Banford v.
Turnley.
The rule of give and take is used to balance the interests of the plaintiff with the interests of the defendant.
Locality Industrial activities in an industrial area may be unreasonable in a residential area but reasonable in
a predominantly industrial area: Halsy v Esso Petroleum [1961].
Time Loud noise at night or in the early morning may be unreasonable but reasonable during the day: Halsy
v Esso Petroleum [1961]
Duration How long each day and for how many days and over what period of time are relevant: Sedleigh v
O'Callaghan [1940].
Nature of activities The nature of the activites will be relevant to determine what is reasonable: Bamford v.
Turnley. Protests are not liked by the courtif they interefere with the right to the property: Dollar Sweets v.
Federated Confectioners Association of Australia.
Availability of alternative means If there are alternatives which are reasonably practicable methods open to
the defendant, this may render the means used unreasonable: McMahon v Catanzaro [1961].
Motive Hollywood Silver Fox Farm v Emmett [1936].
Harm
The plaintiff has to have suffered actual or likely damage, not just possible
Causation; Foreseeable.
Other
There is no requirement that the interference be continuing or recurrent: Hargrave v Goldman (1963).
Defences to Private Nuisance
Statutory authority
The burden lies on those who seek to establish that the legislature intended to take away the private right of
action to show that such an intention appears from the statute: Allen v Gulf Oil [1981].
The invasion of common law rights is only justified if:
– the work was reasonably necessary
– it was properly performed in all respects
– in light of scientific knowledge at time there was no way the end directed or permitted could have been
achieved without doing the damage.
The plaintiffs own default
That the plaintiff brought on the nuisance is a good defence: Lawrence v Obee (1815).
Contributory negligence will also apply: Trevett v Lee [1955].
Plaintiff's abnormal sensitivity: Robinson v Kilvert (1889).
Consent: Kiddle v City Business Properties [1942].
Absence of any legally recognised right in the plaintiff: Elston v Dore (1982).
Remedies
Abatement using self-help must be used with caution to ensure the plaintiff is not exposed to actions in
trespass for excessive exercise of the right when removing the nuisance: Lemmon v Webb [1895].
Injunction Sturges v Bridgeman (1879), for continuing nuisance
Damages, including those in respect of damage to chattels and personal injury: Moss v Christchurch Rural
District Council [1925].
Public Nuisance
A public nuisance is an unlawful act or omission to discharge a legal duty which act or omission endangers
the lives, safety, health, property or comfort of the public or by which the public are obstructed in the
exercise or enjoyment of any right common to all members of the public: A-G v PYA Quarries [1957].
Consider who has standing to Sue
A relator action allows a private person claiming interferences to bring an action using the AttorneyGenerals name in the Attorney-General consents: A-G; Ex rel Pratt v BCC [1988].
A private person may bring a civil action provided he or she can show damage over and beyond that which
the rest of the public has suffered: Walsh v Ervin [1952]. See p.502.
Substantial inconvenience, greater in extent than that suffered by the general public may be sufficient:
Harvey v Shire of St Arnaud (1879).
Loss of custom: to business: Lyons, Sons & Co. v. Gulliver.
Depreciation to land: Caledonian Railway Co v. Walker’s Trustees.
Loss of sleep: Halsey v. Esso Petroleum Co Ltd.
An interest in land is not a requirement.
For crowds, see p36 study guide, defences p 504 of text.