Tort law in Australia

Tort law in Australia consists of both common law and, to a lesser extent, legislation. A tort is a civil wrong, other than a breach of contract. Torts may be sued upon by private individuals against other private individuals (or the state) to correct a form of conduct or wrong. A large number of torts exist, and they generally derive their legal status from the common law. Since a court can define an existing tort or even recognise new ones through the common law, tort law is sometimes regarded as limitless and adaptable to modern circumstances.

Generally, torts are not defined within specific statutes or legislation and have evolved through judge-made law, or common law. However, each state has also created statutes to override the common law, especially in the areas of negligence, personal injuries and defamation, where that has proven necessary.

Australian tort law is heavily influenced by the common law in other countries, principally the United Kingdom, by virtue of Australia's colonial heritage. However, this has since been modified by statutes such as the various states' Civil Liabilities Acts. There is also a strong and recent trend for the Australian High Court to cite with approval many principles from the United States. However, as the High Court noted:

The history of this country and of the common law makes it inevitable and desirable that the courts of this country will continue to obtain assistance and guidance from the learning and reasoning of...other great common law courts. Subject, perhaps, to the special position of decisions of the House of Lords given in the period in which appeals lay from this country to the Privy Council, the precedents of other legal systems are not binding and are useful only to the degree of the persuasiveness of their reasoning.

An example of statutory modification of torts is the various Limitation of Actions Acts, which prescribe time limits within which litigation must be commenced, and extinguish the cause of action (the legal basis for the claim) after the period lapses. The rationale of limitation periods was elucidated by McHugh J:

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