MLL217 Study Guide - Final Guide: Australian Consumer Law, Misrepresentation, Contributory Negligence
2 Jun 2018
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OTHER COMMON LAW TORTS
Injurious falsehood
Elements
Established in Palmer Bruym & Parker Pty Ltd (2001)
1. A false statement made about the plaintiffs goods, business or property or
profession;
2. Publication of the false statement to a third party
3. Malice by the defendant
4. Proof by the plaintiff of actual damage to the plaintiffs business or property or
profession caused by be malicious statement
• Onus is on the defendant to demonstrate that the material is true
False statement made about the plaintiffs goods, business, property, or reputation
• Representation is made out when the claim has been pleaded with precision so as to
avoid confusion in relation to the meaning for which the plaintiff contends
o Haines v Australian Broadcasting Corporation (1995)
• Must be demonstrated by the plaintiff
o Hamod v NSW (No 12) NSWSC 242
Publication of the false statement to a third party
• Examples include:
o Competitors making deliberately false claims about the plaintiffs business to
customers to induce the customers to take their business elsewhere
▪ Swimsure (Laboratories) Pty Ltd c McDonald [1979]
o Disgruntled customers expressing their discontent through publications about
the plaintiff
▪ Kaplan v Go Daddy Group [2005]
The statements were motivated by malice
• Plaintiff needs to prove that the statements are false
• Also need to prove that the statements are motivated by malice
o Very difficult to establish
• Established when the defendant was motivated to make the statement of collateral,
dishonest or improper motive
o E.g. hatred, knowingly false or reckless to the truth
▪ Roberts v Bass (2002) Palmer Bruyn & Parker v Parsons (2001)
• Not malice if merely lack in belief in the truth
• Failure to apologise does not prove malice
• Not malice if merely careless
o Orion Pet Products v RSPCA & Born Brands Pty Ltd v Nine Network Australia
Pty Ltd [2013]
The malicious statements caused actual damage to the plaintiffs business
• Damage must be shown to have been caused by statements
o Ratcliffe v Evans
o Seafolly Pty Ltd v Madden [2012]
▪ Where the plaintiff has suffered damage, injurious falsehood will not
succeed
• If the statement is not a natural and probable cause for the damage, a claim will not
succeed
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o Paalmer Bruyn & Parker v Parsons
• Normal but for principles apply
o Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2013]
• Better view in Palmer Bruyn: necessary for the plaintiff to establish that the defendant
could have reasonably foreseen the damage suffered
Remedies
Damages
• Aggravated, exemplary and compensatory damages will be awarded for causally
related losses
Interlocutory injunction
• Awarded to prevent the publication or repetition of the statements where the plaintiff
can establish that there is a serious question to be tried
• Traditionally reluctant to award injunction
▪ Swimsure, Go Daddy Group
o However there is a recent shift
▪ Beechwood Homes (NSW) Pty Ltd v Camenzuli [2010]
Negligent misstatement
Introduction
• Where a plaintiffs financial position has been affected in the course of relying upon a
statement or advice proffered by the defendant
o San Sebastian v The Minister Administering the Environmental Planning and
Assessment Act 1979 (1986)
▪ Concern is with negligence and the pure economic loss associated
with that negligence
• Duty of care can exist regarding pure economic loss
o Hedley Byrne v Heller & Partners [1964]
▪ Concerned with the words that caused economic loss
• Liability could be attributed if the following were present:
o Voluntary undertaking by the defendant of responsibility
for the statements
o Reasonable reliance by the plaintiff on the negligent
misstatement
o Circumstances and the nature of the transaction
▪ Must demonstrate that the parties were in a relationship equivalent to
a contact
Reasonable reliance
• Established in Hedley Byrne v Heller & Partners [1964] & adopted in Mutual Life and
Citizens’ Assurance Co Ltd v Evatt (1968)
o If someone possessed of a special skill undertakes, quite irrespective of
contract, to apply that skill for the assistance of another person who relies
upon such skill, a duty of care will arise
o Where this duty of care exists, pure economic loss will be recoverable
• Special skill is not a determinant in deciding whether a plaintiffs reliance on the
defendants statement was reasonable (will be important in consideration)
o Mutual Life and Citizens’ Assurance Co Ltd v Evatt (1968)
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