Madden, Bill --- "Book review: Australian Principles of Tort Law, 5th edition" [2022] PrecedentAULA 22; (2022) 169 Precedent 46

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BOOK REVIEW

AUSTRALIAN PRINCIPLES OF TORT LAW, 5TH EDITION

By Pam Stewart and Anita Stuhmcke

Publisher: The Federation Press, 2022. ISBN: Paperback 9781760023355 eBook 9781760023362. Extent: 871pp.

By Bill Madden

Many of us have forgotten more law than we remember, including some important tort law issues. Adjunct Fellow Pam Stewart and Professor Anita Stuhmcke of the Faculty of Law, University of Technology Sydney have produced a fifth edition of their book Australian Principles of Tort Law. Their book may well help us overcome gaps in our memories and assist with some new insights.

The first edition of this book was released in 2005 and the authors have done well to update the book so frequently. The content of the fifth edition, with 24 chapters (listed below) running to over 800 pages, as to be expected includes ‘intentional’ torts to the person, trespass to land, nuisance and of course negligence.

However, the authors have not confined themselves to what might be called a ‘traditional’ chapter structure; rather, they have divided the book based on areas of particular or developing legal interest. There is not one chapter on negligence – there are ten. For example, ‘atypical plaintiffs and specific duty categories’ are allocated a separate chapter, to discuss claims concerning negligence before conception/wrongful birth claims, psychiatric injury (mental harm) and other topics.

Causation in negligence is addressed in two chapters. Unsurprisingly the first looks at common law causation and the legislatively necessary condition and scope of liability provisions. Helpfully that chapter includes a succinct review of material cause and increase in risk caselaw, along with lost chances. The second causation chapter discusses remoteness of damage, including eggshell skull principles.

The book also picks up important topics such as negligently caused pure economic loss and the topical area, particularly in abuse claims, of vicarious liability and non-delegable duties. The vicarious liability discussion by the authors includes the ‘akin to employment’ debate, but unfortunately this predates the recent first instance decisions in NSW and Victoria which suggest a broader gateway than the authors perceive to be permitted by Prince Alfred College v ADC [2016] HCA 37. No doubt the boundaries of vicarious liability will gain more attention in the next edition. Indeed, the publisher’s website already includes an addendum on the recent High Court decision in CFMEU v Personnel Contracting [2022] HCA 1.

Moving on from negligence, there is a chapter on the rarely discussed tort of breach of statutory duty, and in that context I was pleased to see the discussion going beyond work safety cases such as Pask v Owen [1987] 2 Qd R 421 regarding a breach of firearms legislation in the supply of a weapon to a minor. Another chapter includes a thorough discussion of the more recent developments in claims of the Wilkinson v Downton [1897] 2 QB 57 type – intentional statements calculated to inflict harm – noting the continuing importance of that tort given civil liability legislative constraints.

Although the text is easy to read, there is a lot of detail; this review does not even mention all of the chapters. Lawyers in private practice may not have the luxury of the time needed to sit down to read the book from cover to cover, but even to spend some time skimming the topics covered is worthwhile as a reminder of issues not dealt with on a daily basis.

Here is the chapter list for this edition:

1. Introduction to the Law of Torts

2. The Nature of Intentional Torts

3. Intentional Torts to the Person

4. Actions on the Case for Intentionally Caused Mental or Physical Harm

5. Trespass to Land

6. Intentional Torts Relating to Goods

7. Defences to Intentional Torts

8. Introduction to Negligence

9. Breach of Duty

10. Scope of Liability: Causation

11. Scope of Liability: Remoteness of Damage

12. Proof

13. Defences to Negligence: Contributory Negligence, Voluntary Assumption of Risk and Statutory Defences

14. The Framework of the Civil Liability Act 2002 (NSW)

15. The Defence of Illegality and Protection of Volunteers, Good Samaritans and the Apologetic

16. Atypical Plaintiffs and Specific Duty Categories

17. Negligently Caused Pure Economic Loss

18. Liability of Statutory Authorities in Negligence

19. The Tort of Breach of Statutory Duty

20. Vicarious Liability and Non-delegable Duties

21. Nuisance

22. Remedies

23. Death

24. Contribution Among Tortfeasors

The 5th edition of Australian Principles of Tort Law would certainly be a valuable addition to a tort lawyer’s bookshelf, for reference when difficult or uncommon issues arise.

Bill Madden is Special Counsel, Carroll & O’Dea Lawyers. EMAIL [e-mail].