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part i
IntrOductIOn

Part I provides historical and conceptual background to the law of compensation.

Chapter 1 discusses the definition of ‘tort’ and the classification of torts. It provides
a concise account of the historical origins of the common law courts and the early
evolution of the law of torts and civil forensic processes, culminating in the 2002–03
Torts Reforms. Chapter 2 examines historical sources of compensation in the law
of torts, and explains the nature of compensation, classification and assessment
of damages. Chapter 3 focuses on other, mainly statutory, aspects of the law of
compensation: survival of actions for personal injury, actions for wrongful death,
and statutory compensation schemes.

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One
Introduction
to the Law of Torts
and Historical
Overview

Chapter overview
Chapter 1 is divided into four sections. The first section introduces the definition
of ‘tort’ and classification of torts, the second focuses on the short history and
evolution of the law of torts, the third discusses briefly the nature of precedents
and construction of statutory provisions, while the fourth provides the background
to, and overview of, the 2002–03 Torts Reforms.
The notion of common law, as used in this book, refers to the single national
customary law which in the late medieval period displaced the local and baronial
law in England and was later supplemented by equity, though equity remained
separately administered through the Court of Chancery until the Judicature
reforms of 1873–75. Based on a system of judge-made precedent, the common
law has no organised or unified theory of law except for the normative standards
of the rule of law, which encompasses such fundamental principles as:
›› The powers exercised by government and its officials must have a legitimate
foundation, and they must be legally authorised.
›› The law should conform to certain minimum standards of fairness and justice,
both substantive and procedural.
Thus the law affecting individual liberty ought to be reasonably certain and
predictable; and a person ought not to be deprived of his or her liberty, status,
or other substantial interest without having been given the opportunity of a fair
hearing before an impartial tribunal.

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1.1 Definition and classification of torts

1.1.1 What is a tort?
In Latin the word ‘tortus’ means twisted or crooked. In Old French it came to denote some wrong
or harm. This meaning was adopted by English common law, where it signifies an actionable,
wrongful act, other than breach of contract, done intentionally, negligently, or in circumstances
involving strict liability (i.e. where the plaintiff need not prove negligence or fault on the part of
the defendant). Guido Calabresi defines torts as the law’s response to ‘breaches in noncriminal,
often non-contractual interpersonal relationships’.1
Percy Winfield declared in his Law of Torts that, ‘all injuries done to another person are torts,
unless there is some justification recognised by law’.2
The High Court of Australia in John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 519 [21]
noted that:
the term ‘tort’ is used … to denote not merely civil wrongs known to the common law
but also acts or omissions which by statute are rendered wrongful in the sense that a
civil action lies to recover damages occasioned thereby.

Most relationships arising out of social intercourse and professional endeavour are governed
by the law of torts. Each tort relates to a particular interest or interests that the law regards
as worthy of protection. For example, the law regards as worthy of safeguarding our interest
in personal liberty; in unimpaired reputation; in physical, emotional and economic integrity.
Economic integrity refers to the right to security of our property, and the right to exploit it within
the limits of the law.
A defendant’s conduct will be deemed wrongful where a failure to act in accordance with
normative standards of behaviour occasions an injury to the plaintiff’s interests. For instance, it
is a normative standard of civilised society that one person may not interfere with another’s body
without the latter’s consent or lawful justification.
Legally recognised wrongs that have specific names are called ‘nominate torts’. By contrast,
innominate torts are known by the names of cases that first legally recognised the wrong
involved, for example the tort of Wilkinson v Downton ([1897] 2 QB 57). Thus, the law of torts
comprises a miscellaneous group of civil wrongs, other than breach of contractual terms, which
afford a remedy in the form of damages to a person who has sustained an injury as a result.

1.1.2 Remedies
Litigation—or arbitration, or mediation—is a means of obtaining a legal remedy. Unlike criminal
law, which aims to punish the wrongdoer, the main object of torts law is to obtain damages for
loss suffered as a result of the tortious conduct. The economic theory of the law of torts suggests
that the social function of an award of damages is loss-spreading. Indeed, the central concern

1 Guido Calabresi, ‘Toward a Unified Theory of Torts’ (2007) 1.3 Journal of Tort Law.
2 PH Winfield, Law of Torts, 4th edn, Sweet & Maxwell, London, 1948, 13.

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of the law of compensation is not the question of absolute right or wrong, but who should bear
responsibility for the injured party’s loss: the injured person or the wrongdoer?
Compensation in the form of damages may not be automatic upon the plaintiff proving
wrongful conduct. Before the loss is shifted onto the defendant, the plaintiff must show not only
that the injury-causing conduct was legally recognised as wrong, but also that the injury itself
was of a kind recognised by the law of torts, and that it was not too remote.
In other cases, the person will not be compensated because the alleged injury is outside the
interests recognised and protected by the law of torts. The law of torts thus differentiates between
various interests for which individuals may claim protection against injury or loss by others.
Historically, the common law has been more ready to safeguard against intentional deprivation
of liberty or trespassory injury to body, property, honour or reputation, than to safeguard against
injury to feelings or damage to economic interests through unintentional acts. However, the law
is dynamic, and over time, some torts may be judicially or legislatively jettisoned—champerty;
seduction; criminal conversation; enticement and harbour—or they may be absorbed into other
torts. In the 1980s and 1990s, the tort of negligence ‘swallowed up’ other tortious actions: for
example the tort of strict liability known as the special rule in Rylands v Fletcher [1868] UKHL
1, (1868) LR 3 HL 330; and general action on the Case, which was absorbed into negligence in
Northern Territory v Mengel [1995] HCA 65; (1995) 185 CLR 307. New torts are created either
by statute (for example, copyright legislation;3 medical trespass under Medical Treatment Act
1988 (Vic); racial victimisation under Civil Liability Act 1936 (SA); s 73; the foreshadowed (at this
stage) statutory cause of action for serious invasion of privacy under Privacy Act 1988 (Cth); and
other statutory torts) or by the judiciary (for example, action in negligence for misfeasance in
public office; action on the Case for intentional infliction of nervous shock; the tort of unlawful
interference with contractual relations, and so forth).
The law of torts also has another function: deterrence. This aspect of the law will be discussed
in Chapter 2 (Damages) under punitive damages. However, it is worth noting at this stage that the
concept of deterrence, which comes from criminal law, infuses, as it were, the quintessentially
private law of torts with public law principles and considerations.4
The law provides for various remedies for conduct which may amount to a tort, a breach
of contract, or a breach of trust. There are also non-judicial remedies, such as the self-help
remedy of abatement of nuisance, the privilege of recaption of chattels, and alternative dispute
resolution (ADR), either through the adversarial process of arbitration or through the non-
adversarial process of conciliation and mediation. Judicial remedies include compensation
through damages, punishment, restitution, and coercive relief by way of injunction and specific
performance. Restitutionary remedies are different from compensation in the form of damages,
in that they are based on rectifying the gain to the defendant.5 Other remedies will be discussed
in the context of specific torts.

3 Copyright Act 1968 (Cth).

4 JCP Goldberg, ‘Tort Law for Federalists (and the Rest of Us): Private Law in Disguise’ (2004) 28 Harvard
Journal of Law & Public Policy 3; D Mendelson, ‘Punitive Damages Sensu Stricto in Australia’, in E Nordin and L
Meurkens (eds), The Power of Punitive Damages—Is Europe Missing Out?, Intersentia (Ius Commune Europaeum),
Cambridge, UK, 2012, 145–160; P Cane, ‘Mens Rea in Tort Law’ (2000) 4 Oxford Journal of Legal Studies 533–556.
5 M Tilbury, M Noone and B Krecher, Remedies: Commentary and Materials, Law Book Company, Sydney, 1993, 69.

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1.1.3 Classification of torts

Broadly speaking, at present the law of torts in Australia protects the following interests:
›› our right to physical integrity—the immunity of the body from direct and indirect injury,
and preservation and furtherance of bodily health—protected by the torts of battery and
negligence;
›› our right to freedom from serious and unreasonable interference with mental integrity—
mental poise and comfort—protected by the torts of assault, action on the Case for intentional
infliction of nervous shock (the tort of Wilkinson v Downton), liability for negligently inflicted
nervous shock, defamation, and nuisance;
›› our right to privacy, which is relatively modern, and has received scant protection at common
law—as society ascribes to it more value, statutory protections have been implemented,6 and
it is probable that either a new tort protecting privacy will be recognised or that existing torts
will be expanded to encompass aspects of the right to privacy;
›› our legal interest in freedom of movement—the right of personal liberty to lawfully choose
where to be and which way to go—protected by the tort of false imprisonment;
›› our right to use land, light, air, running water, the sea, and the shore of the sea—to some
degree safeguarded by the torts of trespass to land, private nuisance, public nuisance and,
sometimes, the tort of negligence;
›› our rights to free belief and opinion, religious and political—partly protected through the
torts of malicious prosecution, false imprisonment and defamation;
›› our right to free social and commercial exchange without economic or physical duress—
protected by means of such torts as interference with contractual relations, conspiracy,
duress, and the tort of collateral abuse of process, while the tort of misfeasance in public
office protects against intentional misuse of power by public officers;
›› our rights of property—corporeal property, including the right of gift and bequest, and
intellectual property, such as patents and copyrights—partly protected through such torts
as conversion, detinue, trespass to goods, passing off, misrepresentation, and injurious
falsehood.
To sum up, the book covers the following torts:
›› trespass to person (battery, assault, and false imprisonment);
›› trespass to land;
›› action on the Case for intentional infliction of physical harm;
›› action on the Case for intentional infliction of nervous shock;
›› malicious prosecution;
›› collateral abuse of power;
›› misfeasance in public office;
›› trespass to goods;
›› detinue;
›› conversion;

6 Privacy Act 1988 (Cth); Health Records Act 2001 (Vic); Health Records (Privacy and Access) Act 1997 (ACT); and
Health Records and Information Privacy Act 2002 (NSW).

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›› negligence including:
›› non-delegable duty of care
›› omissions
›› pure economic loss
›› nervous shock: liability for negligently occasioned pure psychiatric injury
›› defamation;
›› deceit and injurious falsehood;
›› nuisance; and
›› breach of statutory duty.
Priority is given to the study of the tort of negligence because of its comparative importance.

Table 1.1 Nominate torts categorised by area of impact

Intentional torts
Trespass Indirect intentional Tortious Economic torts
torts communications
Battery Action on the Case for Defamation Interference with
intentional infliction of contractual relations
physical injury

Assault Action on the Case for Slander Conspiracy

the intentional infliction
of nervous shock

False imprisonment Misfeasance in public Libel Unfair competition

office

Trespass to land Duress

Deceit Passing off

Malicious prosecution Misrepresentation

Collateral abuse of Injurious falsehood

process

Conversion

Detinue

Unintentional torts
Negligence Breach of statutory duty

Miscellaneous torts
Private nuisance Liability for animals

The law of torts can be divided into three main taxonomic categories: statutory torts,
trespass, and action on the Case.

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The common law tort species of the genus of trespass can be diagrammatically summarised
as in figures 1.1 and 1.2.

Figure 1.1 Trespass

Trespass

Battery Trespass to land

Assault Trespass to goods

False imprisonment Cattle trespass

Variants of statutory trespass

The tort of negligence is one of the species of action on the Case. Its place within the context
of the law of torts can be expressed in the diagrammatic form shown below.
Breach of statutory duty is a statutory tort.

Figure 1.2 Action on the case

Action on the Case

Deceit Libel

Detinue Slander

Conversion Defamation

Nuisance Negligence

Ejectment Passing off

Abuse of process Interference with

contractual relations
Injurious falsehood
Unlawful interference
Malicious prosecution with trade or business

Loss of service (originally trespass Misfeasance in public office

but later Case)
Action on the Case for intentional
Action on the Case for intentional infliction inflection of physical harm
of nervous shock
Maintenance and champerty (abolished
by statute in certain jurisdictions)

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1.2 Historical origins of the law

of torts
1.2.1 Origins of customary law of torts
The word ‘law’ is not derived directly from the Latin ‘lex’, but from the Old Norse ‘lagu’
(something ‘laid down’ or fixed), and Old North German ‘lagh’. The Romans ruled most of Britain
for 400  years. Yet the withdrawal of Roman military and civil administration from Britain in
410 was followed by a rapid collapse of physical, administrative and cultural infrastructure of
the British Roman towns and provinces. Within some 30 years, the knowledge of Latin, and
hence of the Roman law, became a rarity. The illiterate Germanic tribes—Angle, Saxon, and
Jute—settled most of the country through conquest and migration and created a network of
tribal, hereditary kingships. The Anglo-Saxons, as they came to be called, introduced their own
customary laws, which were modified after the Viking Danish conquered eastern England in the
ninth century and imposed ‘Danelaw’.
Germanic laws (Salic) of the Anglo-Saxons and Danes recognised conduct that we would
today consider wrong or tortious, but they dealt with it in terms of ‘folk-rights’. These were
unwritten customs developed by a particular locality or tribe. In some localities, for example,
wronged persons were expected to personally pursue the wrongdoer. If the wrongdoer was
caught ‘hand-having’ or ‘back-bearing’ (ie ‘red-handed’), the victim was allowed to execute the
wrongdoer on the spot.7 Thus, the Northumberland Assize Rolls for 1255 record that a certain
‘foreigner’, Gilbert of Niddesdale, met a hermit on the moors of Northumberland. Gilbert ‘beat
him and wounded him and left him half dead, and stole his garments and one penny, and fled
away’. When Gilbert was caught, the hermit asked for his stolen penny. However, he was told that
by the custom of the county, in order to recover his stolen goods, he must behead the thief with
his own hands. Determined to regain his penny, the hermit did so.8 The custom referred to was
blood feud under the law of vengeance.
In Anglo-Saxon England, customary laws of private vengeance and solidarity of kindreds
in feuds (the family feud was known as faida), were long-standing and widespread. They
were based upon a highly sensitised understanding of family honour and loyalty combined
with encouragement to immediate retaliation. The law of vengeance was generally invoked
for murder, adultery, violation or rape of a married woman, violation of the dead, aggravated
robbery, or, importantly, any insult to the family honour.9 It was open to all ranks among the
Germanic, English, and Frankish people of the early Middle Ages, and for centuries the royal
authority—before and after the Norman invasion—as well as the Church, struggled to suppress

7 AR Houge, Origins of the Common Law, Liberty Press, Indianapolis, 1966, 16.
8 GC Coulton, ‘Some Problems in Medieval Historiography’, The Raleigh Lecture on History (1932) 17 Proceedings
of the British Academy, 17–18. Full record of the case (1891) 88 Surtees Society 70. Quoted by AR Houge, Origins of
the Common Law, Liberty Press, Indianapolis, 1966, 16.
9 Duels of honour—private combat in the form of consensual revenge for the perceived injury to the participants’
honour and reputation—were probably the best known vestiges of the law of vengeance.

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it. Thus the code of Æthelberht, King of Wessex (d 865), contains elaborate tariffs of fines for
breach of the peace. The preservation of peace would be the mainspring of the law of trespass.10

1.2.2 The institution of ordeals

Forensic procedures of customary law were based upon a premise that law was not ‘made’ or
‘created’ but rather ‘declared’ by those familiar with the custom of a certain territory. Customary
laws approved by use carried the greatest authority. The wise men of each community were
familiar with procedures for settling disputes by imposition of physical tests, known as ‘ordeals’.
Ordeals were meant to invoke the miraculous intervention of God in settling human disputes.
In an ordeal of hot iron, a piece of iron would be placed in the fire and then handed to the
suspect, who had to carry the red-hot iron, weighing between 500 g and 1.5 kg, over a distance
of between three and nine paces. Sometimes, the suspect had to walk barefoot over nine red-
hot ploughshares. The suspect’s hands or feet were inspected by the priest three days later;
if the burn had festered, God was taken to have decided against the party. The ordeal by hot
water followed a similar procedure. Failure of the test meant not only loss of the suit, but also a
conviction for perjury. Ordeals were abolished as part of the canon law by the Fourth Lateran
Council in 1215, but persisted in common law for a number of centuries.
The administration of the oath or ‘wager of law’ was also governed by custom. With the
court’s consent, either of the parties could be required to swear to the truth of their case on
the holy evangels. The custom required that the party swearing the oath bring a number of
compurgators or ‘oath-helpers’, usually kinsmen or peers who also swore the oath, to back
up the assertions. If pronounced in the correct manner, the oaths were considered as proof.
There was always a danger that the party who had more money to bribe the greatest number of
witnesses would win. The Frankish Queen Fredegond (d 597) persuaded three bishops and three
hundred nobles to swear that the infant prince was actually begotten by her deceased husband.11
Nevertheless, the ‘wager of law’ persisted until 1833.
The oaths and ordeals were intended to preclude human judgment on the merits of the
case. The Normans introduced the form of judicial combat called ordeal by battle both upon
accusations of felony (an ancient form of a law suit known as ‘appeal’) and on an equally ancient
writ of right for the recovery of land.12 Where, by reason of age or physical incapacity, a party
could not fight, or if the party were a woman or an ecclesiastic, a substitute, usually a kinsman or
a hired champion, could fight the combat. The first recorded refusal of trial by battle in an action
for trespass dates back to 1304.13 According to William Blackstone, the last trial by battle allowed
in a civil suit was during the reign of Queen Elizabeth I.14

10 The term ‘trespass’ (from French ‘trespas’ and Latin ‘transgressio’) came to be used as name for a discrete form
of action in the third quarter of the thirteenth century. PR Hyams, Rancor & Reconciliation in Medieval England,
Cornell University Press, Ithaca, NY, 2003, 241.
11 Gregory of Tours, History of the Franks, Ormonde M Dalton (trans), vol 2, Oxford University Press, Oxford, 1927,
334–335; quoted by CF Riedel, Crime and Punishment in the French Romances, AMS Press, New York, 1966, 33.
12 DJ Seipp, ‘Symposium: the Distinction between Crime and Tort in the Early Common Law’ (1996) 76 Boston
University Law Review 59–87.
13 YB 32; See also 33 Edw I (RS) 318, 320.
14 Commentaries on the Laws of England, A Facsimile of the First Edition of 1765–1769, vol 3, Clarendon Press,
Oxford; photographically reprinted by The University of Chicago Press, Chicago and London, 1979, 336–341.

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Traditionally, the adversarial civil litigation process is considered to be essentially a fact-

finding endeavour in the sense that it is a trial of the strength of each side’s advocacy and ability
to adduce the most credible evidence in support of its pleas and allegations. In his book The
Judge,15 Lord Devlin observed that ‘the centrepiece of the adversary system is the oral trial
and everything that goes before it is a preparation for the battlefield.’ The presumption is that
‘the best way of getting at the truth is to have each party dig for the facts that help it; between
them they will bring all to light.’ Lord Devlin’s reference to ‘battlefield’ aptly characterises the
nature of cross-examination of witnesses in the open court, which aims to expose dissimulation,
concealment, and fraud—and which often leaves deep emotional scars.
More recently, however, Kirby J, in a dissenting judgment in Whisprun Pty Ltd v Dixon [2003]
HCA 48 at [117]–[118], noted that the function of the trial judge is intellectually more complex:
With respect, the joint reasons in this Court, and the reasons of the primary judge,
appear to approach that function as if the judge were the successor to the adjudicator
of the combat of knights of old—in a kind of public tournament between parties. In
my view, we have travelled some distance since those times. The modern civil trial
process is a more rational undertaking. It is based upon a close analysis of the relevant
evidence, evaluated by a competent decision-maker who is obliged, if a judge, to give
reasons which explain the decision arrived at … The law has advanced since the
days when truth was distinguished from falsehood at trial by battle and ordeal or by
their modern equivalent—conclusive judicial assessment based on impression and on
necessarily limited evidence.16

His Honour (at [120]) went on to define the function of the trial judge in a civil trial thus:
the ultimate duty of the decision-maker in an Australian court [is] to decide a case
according to law and the substantial justice of the matter proved in the evidence, not
as some kind of sport or contest wholly reliant on the way the case was presented by
a party.

1.2.3 The courts

At the time of the Norman Conquest, England was divided into counties and hundreds (an
administrative subdivision of counties sufficient to sustain one hundred families). Customary
laws administered in shire-moots, hundreds, and county courts were very diverse, and in many
ways incapable of adapting to social and political change. With the growth of the feudal system
and its institutions of overlordship and vassalage, traditional communal courts based upon
customary law gave way to the seignorial (baronial) courts.
Following the Norman Conquest in 1066, William the Conqueror (r 1066–87) began the
process of administrative and judicial centralisation in England by organising the judiciary and
regulating criminal and evidentiary law. The royal courts, known as curiae regis, were created as
part of the efforts by Henry II (r 1154–89) to establish legal institutions capable of maintaining

15 Oxford University Press, Oxford, 1981, 54, 60.

16 Kirby J referred to: Holdsworth, A History of English Law, 7th edn, Methuen, London 1956, vol 1, 308–312, and
Fox v Percy (2003) 77 ALJR 989 at 995 [30]–[31]; 197 ALR 201 at 209–210.

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social order. Initially, royal justice was dispensed by the King. He exercised judicial powers
personally, or through appointed surrogates—earls, bishops, abbots and royal counsellors—in
his council, the Curia Regis.17 This court came to be known as coram rege (before the King) or the
Court of King’s Bench.
The beginnings of the modern law of torts are generally traced to the twelfth century when,
under Henry II, royal courts were vested with jurisdiction to protect peaceable possession of
land. The Court of Exchequer (or Exchequer of Pleas) was the first court to be established as a
separate royal court. Originally it dealt with revenue cases, but later became the main court of
equity as well as having limited jurisdiction to hear civil cases.18 The Court of Common Pleas
was the central royal court that sat at Westminster. The Court of Common Pleas had jurisdiction
throughout England for most civil actions (real and personal) at first instance, particularly those
where the breach of peace was involved, as well as all actions relating to land under the feudal
system.
From 1179, in any case concerning property rights the defendant could choose between
trial by jury in the royal courts and trial by battle in the baronial courts. Trial by jury has its
origins in the Republican Rome of 149 BCE, when jurors (iudices) were selected from a standing
list to a permanent tribunal investigating charges of extortion. The cases were determined by
majority vote.19 However, the direct predecessor of the English jury system was the French royal
inquisition established under Charlemagne. The jury, arraigned from free men who came from
the locality where the dispute arose, was entrusted with the task of resolving questions of fact.
The jury thus replaced ordeals, and in particular, the judicial duel, as the means of proof in civil
matters.20
However, in medieval times, travel was slow and dangerous, and it was very inconvenient
for the jurors to have to come to Westminster. Henry II’s royal sessions, the Assize of Clarendon
(1166) and the Assize of Northampton (1176), established the system of circuit judges21 who
travelled throughout the country during four ‘law terms’.22 Their rounds were organised in 1328
into a fixed pattern of six circuits. These remained virtually unchanged in England until 1971.
In Australia, as in England, senior judges of the Supreme Court and County or District Court in
each jurisdiction, as well as judges of the Federal Court and the High Court, still go ‘on circuit’.
From the beginning of the fourteenth century, civil cases were generally tried by summoning
the juries to the Court of Common Pleas at Westminster or to the Court of King’s Bench, unless
(nisi prius) the judges had earlier visited the locality to hear the juries’ verdict. Judges would then

17 J Crawford, Australian Courts of Law, Oxford University Press, Melbourne, 1986, 9.

18 The Court of Common Pleas had sole jurisdiction over real actions.
19 G Mousourakis, The Historical and Institutional Context of Roman Law, Ashgate, Aldershot, 2003, 224.
20 RC van Caenegem, An Historical Introduction to Private Law, Cambridge University Press, Cambridge, 1988, 26,
107.
21 Courts Act 1971 (UK).
22 From the twelfth century, the Court of Common Pleas and other courts heard cases almost continuously
during four distinct periods of the year, known as the law terms: Michaelmas term (autumn); Hilary term
(winter); Easter term; and Trinity term (summer). The Supreme Court of Judicature Act 1873 (36 & 37 Vict, c 66)
abolished the legal terms and replaced them with court ‘sittings’, at times which correspond to the old ‘terms’.
See: Historical Note on the Legal Terms at <www.newsquarechambers.co.uk/calculators/termdatecalculator.
htm##historicalnote> accessed 27 May 2014.

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