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Forret, Joan --- "Book Review" [1997] WkoLawRw 7; (1997) 5 Waikato Law Review 97

BOOK REVIEW

THE LAW OF TORTS IN NEW ZEALAND, by Stephen Todd (general editor), (2nd edition). Wellington, Brooker’s, 1997, xcviii and 1316 pp, including index. Price $144.00 including GST (softcover).

The second edition of the Law of Torts in New Zealand builds on the first edition, by rewriting and revising material to incorporate the changes to the law of torts in New Zealand over the last six years. The aim of the book (as expressed in the preface to the first edition, at p v) is to provide a modern New Zealand text that describes:

the distinctive approach taken by New Zealand courts towards the development of the common law of New Zealand and to evaluate the position here in the light of decisions elsewhere, notably those in England, Australia and Canada.

To be asked to review a tome of this nature comprising more than 1300 pages of detailed and complex text is somewhat overwhelming. I began the task, not only with some degree of trepidation, but also with a measure of incredulity that this second edition is 360 pages longer than the first. This is in view of the fact that in New Zealand a significant proportion of the law of negligence is removed from the common law by the Accident Rehabilitation and Compensation Insurance Act 1992, and that much of the law of nuisance is avoided by recourse to the Resource Management Act 1991.

Many of the chapters contained in the first edition have undergone substantial revision, due to the influence of key New Zealand and overseas cases which have clarified and, in some cases, restated the law. Some reordering of chapters has also occurred to provide a more logical and coherent discussion. For example, the chapter which concerns causation and remoteness of damage now follows the substantive discussion of all the tort actions, rather than remaining linked with the tort of negligence; and the chapter which considers vicarious liability follows the more general discussion of defences.

Of the five original contributors, four provide chapters in the second edition. Stephen Todd continues as the general editor and authors chapters on accident compensation, trespass to the person, aspects of negligence, abuse of legal procedure and of public office, causation and remoteness of damage, defences, parties, multiple tortfeasors, and discharge of liability. He also co-authors with John Hughes the introductory chapter, with Margaret Bedggood a chapter which considers aspects of unfair competition, and with John Burrows a chapter concerning deceit and injurious falsehood.

Margaret Bedggood again provides the chapters which consider interference with business relations, and these have been revised to include recent case law and reference to the Employment Contracts Act 1991. John Burrows is responsible for the chapters on breach of statutory duty, defamation and privacy. Robert Chambers remains responsible for the discussion of the land torts of trespass, nuisance and the rule (or lack of it) in Rylands v Fletcher.

There are three new contributors to the second edition, who assume responsibility for the chapters formerly contributed by Margaret Vennell. As well as contributing to the introduction, John Hughes provides the discussion on vicarious liability, Cynthia Hawes provides a chapter which considers wrongful interference with goods, and Andrew Beck takes over the discussion of remedies.

The second edition includes two new chapters. One considers abuse of public office and includes a discussion of misfeasance in a public office and public law compensation. The latter discussion focuses on the development of a remedy in public law actions for damages, arising out of the decision in Simpson v Attorney General [Baigent’s Case] [1994] NZCA 287; [1994] 3 NZLR 667. The other new chapter discusses the topic of parties, which was formerly included in the introduction to the first edition.

Of particular interest is the chapter on the rule in Rylands v Fletcher. This chapter has been substantially rewritten to reflect the changing approach in England following the decision of the House of Lords in Cambridge Water v Eastern Counties Leather Plc [1993] UKHL 12; [1994] 2 AC 264, and the decision of the High Court of Australia in Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 179 CLR 520. Robert Chambers quite understandably takes the opportunity to congratulate himself on the success of his predictions for the development of the rule in Rylands v Fletcher which were contained in the first edition. It was a theme of that chapter that the rule in Rylands v Fletcher is not a separate doctrine of legal liability but rather a subset of the law of private nuisance. Chambers rejected the view that Rylands v Fletcher should be considered as a separate strict liability tort, and he noted the inconsistency between requiring an element of foreseeability of harm as a prerequisite to liability in nuisance and not requiring this element in Rylands v Fletcher. Since the first edition, the decisions in Cambridge Water and Burnie have provided alternative paths for the determination of Rylands v Fletcher actions. The House of Lords, in Cambridge Water, effectively removed much of the difference between nuisance and the rule in Rylands v Fletcher by incorporating into Rylands v Fletcher a requirement for foreseeability of the type of damage claimed. Describing the decision in Burnie, Chambers comments (at p 594) that “for the purposes of the common law of Australia, the rule in Rylands v Fletcher had been absorbed by the principles of negligence”. In this second edition, the author supports the approach taken in Cambridge Water and cogently argues for the demise of a separate action in Rylands v Fletcher. He concludes (at p 595) that “in every case in which a plaintiff would be entitled to succeed in Rylands v Fletcher the plaintiff would also be entitled to succeed in nuisance”.

While accepting the general propositions and conclusions reached on Rylands v Fletcher, I regret that more discussion was not provided in this edition on the reasons for the development of a difference in approach between private nuisance and Rylands v Fletcher. In particular, the status of the plaintiff is very briefly considered, with no discussion of the various cases which have allowed plaintiffs to recover where they had no proprietary interest in land. In order for the reader to be completely comfortable with the chapter’s conclusions it is necessary to have in this edition a complete understanding of the rule itself, including its historical development. The development of the law relating to the rule in Rylands v Fletcher presents a golden opportunity to illustrate the dynamic nature of tort law, using a modern twist to an unsettled area of law.

A criticism which is equally levied against both editions of the Law of Torts in New Zealand, is that there seems to be some ambivalence as to the target audience. The preface is silent on this point However, the introduction to the second edition begins (at p 2): “A student new to the law may well be puzzled by what is meant by a ‘tort’”. The introduction continues with a clear discussion of the historical and theoretical framework for the development of the common law torts and other systems of compensation in New Zealand. On the face of it, therefore, this book is offered as a standard text for students of tort law in New Zealand. However, this text provides far more than any undergraduate student of torts would ever require in order to complete the requirements of the Council of Legal Education. The Law of Torts in New Zealand reads as an authoritative reference on all aspects of tort law relevant to New Zealand. The first edition has been used extensively as an authority in judicial decisions at all levels, including at least one decision of the Privy Council (Invercargill City Council v Hamlin [1994] 3 NZLR 513). The second edition, like the first, contains a wealth of commentary and authorities on every aspect of tort law, in a well written, but extremely comprehensive book. I suggest that the detailed and authoritative nature of the work is both its greatest strength and weakness. For students “new to the law” The Law of Torts in New Zealand could prove to be overwhelming. Some reorganisation to clarify and state key principles and authorities at the beginning or end of each chapter would certainly enhance student access to a third edition. In many instances, a few words about the facts of cases which are cited as authorities would also do more for understanding and application of principles than a raft of obscure and ancient citations contained in the footnotes.

Another comment on organisation of the book concerns the presentation of the Table of Cases. I found the first edition to have an excellent record for accurate citations of cases and the Table of Cases is the obvious point of reference when full case citations are needed. Unfortunately, in the second edition, cases are listed in the Table of Cases without full citations and with reference only to the applicable chapter sub-headings of the text. As page references for sub-headings are not listed in the Table of Contents, it can be a laborious job to identify the correct page and thence the citation of a desired case.

Overall, however, I congratulate Stephen Todd and his co-authors on producing the second edition of a book which has become the New Zealand authority on tort law. The new edition is very readable and shows remarkable editorial consistency in combining 26 chapters written by seven different authors. The work provides a coherent framework for the law of torts, a detailed and comprehensive description and explanation of the law, and a valuable normative discussion capable of stimulating healthy academic debate.

JOAN FORRET[*]

[*] Lecturer in Law, University of Waikato.