Mar 1st 2016, 19:30

CONTEMPORARY PERSPECTIVES AND PRACTICAL ADVICE ON INTENTIONAL TORT LITIGATION IN AUSTRALIA

An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers

For experienced and novice lawyers alike, particularly those practicing in international law, this new book from “The Federation Press” is a very handy primer on intentional tort litigation, primarily in common law jurisdictions.

Speaking of the common law, it is gratifying for British lawyers and academics to observe the continuing and robust evolution of the common law in other common law countries, in this case, Australia.

Easy to read, concise and reassuringly thorough, the book provides a useful and practical guide for practitioners conducting intentional tort litigation. As indicated by the book’s sub-title, intentional torts are almost invariably rooted in malice.

The focus of the book is mainly, although not exclusively, on those intentional torts commonly arising from the exercise of police powers, as the co-authors, Corrie Goodhand and Peter O’Brien, explain. Defendants in such cases are commonly police officers, or the (Australian) state, or territory itself, charged with the liability, either directly or vicariously for the tortious acts of such officers.

The book’s introduction dwells on the intrinsic dilemma here, pointing out that ‘those who protect us’ -- i.e. police officers -- ‘must be allowed to perform their duties without the constant threat of being personally sued for acts done in good faith.’ However, the corresponding burden of responsibility is to avoid any misuse of power, especially if compounded by reckless disregard for individual human rights.

Striking a balance between power and responsibility is ‘no mean feat’, say the authors, as human beings are inevitably fallible. But when and where the police, for example, fall below the expected standards of professional behaviour in the form of intentional torts, compensation should be available to those who have been wronged. Issues of damages immediately emerge here, as well as other problems, including the fact that challenging the excesses of the State is not often a very popular activity.

Methodically and with considerable verve, the authors consider the major aspects and implications of intentional torts, discussing for example, when or whether a claim may be brought, the possible defences available under the common law or statute, the documentation required and much more.

The book offers a clear perspective on intentional tort litigation, albeit in the Australian context. As most of its contents would be applicable in any common law jurisdiction, it should be considered a very useful acquisition for any well stocked professional library and highly persuasive in other jurisdictions.

The law is stated, as far as is possible, up to August 2015.