Dear Colleagues;

The High Court of Australia has handed down two significant tort decisions today. I am out of the office (and the country) at the moment, and won’t be able to offer anything like a detailed analysis, but I wanted to bring them to notice.

One is the decision in Amaca Pty Limited v Latz; Latz v Amaca Pty Limited [2018] HCA 22 (13 June 2018) http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA//2018/22.html , actually the pronouncement of reasons in relation to the earlier order of the court disposing of the proceedings (presumably because of the illness of the plaintiff). (See official summary here: http://www.hcourt.gov.au/assets/publications/judgment-summaries/2018/hca-22-2018-06-13.pdf ). Mr Latz was suing Amaca for personal injury occasioned through asbestos. The questions at issue were whether his damages award should include a component for the “lost years” caused by shortening of his life, in relation to (1) receipt of superannuation benefits, and (2) receipt of the aged pension. There was also the question as to whether, if he were to be awarded damages for the loss of superannuation, there should be a deduction for a separate amount which his partner would receive under that scheme.

Our colleague Harold Luntz has commented briefly as follows:

 

The High Court duly published its reasons this morning for the decision in Amaca v Latz. There are fortunately only two judgments. I have just skimmed them. 

The first is a dissenting judgment of Kiefel CJ and Keane J. In essence it accepts the view that CSR v Eddy comprehensively states all the categories of damages and that to award damages for the superannuation and pension losses in this case would extend the categories unacceptably. 

The other judgment is a joint one of all the remaining members of the High Court. It is slightly shorter. The essence is contained in the concluding paragraphs [101]-[115]. It recognises that there have been changes in society reflected in this case, such as the growth of superannuation and mesothelioma cases. They approve a passage of Stephen J's judgment in Todorovic v Waller to the effect that there must be no fixed rules for the assessment of damages but they must be adjusted to achieve the proper measure of compensation. They regard superannuation rights of the plaintiff as a capital asset of which he has been deprived and it should make no difference whether the deprivation occurs while he is still earning it or thereafter. It is intrinsically connected with his earning capacity. The government pension is different because it is not even a form of property to which the plaintiff is entitled. It is like legacies and trust distributions for which no compensation would be payable.

They say remarkably little about the appeal by the plaintiff against the deduction from his damages of the benefits payable to the wife. They refer to these as "collateral", obviously using the word in a different sense from collateral benefits which have to be disregarded. They seem to mean that it is taken into account when the superannuation is valued and part of the value has not been lost.

They mentioned that one must look at the methodologies by which superannuation is valued. At [97] they seem to approve of the approach of looking at the ultimate value and not taking account of the contributions, which is the current way of valuing loss of superannuation benefits. They say it makes no difference whether the scheme is a defined benefit one or an accumulation one or has any other label attached to it. This is going to provide work for the actuaries and forensic accountants.

 

The second decision is Trkulja v Google LLC [2018] HCA 25 (13 June 2018) http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA//2018/25.html . This involved questions about Google’s liability for “autocomplete” entries and linked photographs revealed in internet searches. (See official summary here: http://www.hcourt.gov.au/assets/publications/judgment-summaries/2018/hca-25-2018-06-13.pdf ) Mr Trkulja is suing because when his name is searched it appears in the context of photos and articles about Melbourne underworld gangsters. There were three issues: (1) was Google a “publisher” of the alleged defamatory material? (2) did it have the capacity to be defamatory? And (3) whether there was some general immunity Google was entitled to.

All these are fascinating questions. But the High Court does not address the most interesting, (1), because they hold that the proceedings are at too early a stage for the summary dismissal of claims ordered by the Victorian Court of Appeal under ground (2). In effect, they say that the second ground was not so untenable that it should have been dismissed without a full hearing, and order that the matter go back for a hearing on this issue before the trial judge. They note that the extensive discussion given by the VCA of the first question, whether Google is a publisher, was open to criticism at a number of points, and in any event should not have been undertaken when the Court did not need to come to a conclusion on the issue. Since it was indeed possible that a jury might have found the material capable to being defamatory, that matter needs to be resolved before the other issues become relevant.

 

Regards

Neil

 

 

 

NEIL FOSTER

Associate Professor, Newcastle Law School

Faculty of Business and Law

409 Hunter St

Newcastle

 

T: +61 2 49217430

E: neil.foster@newcastle.edu.au

 

Further details: http://www.newcastle.edu.au/profile/neil-foster

My publications: http://works.bepress.com/neil_foster/ , http://ssrn.com/author=504828 

Blog: https://lawandreligionaustralia.blog

 

 

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