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CHALLENGING CONCEPTIONS OF ACCESSORY LIABILITY IN PRIVATE LAW
Published online by Cambridge University Press: 22 April 2019
Abstract
This article concerns recent challenges to the utility of “accessory liability” as an organising principle or concept in private law and argues that accessory liability is a coherent body of law with common features that is worthy of separate, holistic treatment. We defend a conceptual framework for accessory liability which is dynamic in its operation and which does not dictate the precise legal content of accessory liability in different contexts. Such a conception of accessory liability has come under challenge from recent cases and commentary which either minimise the scope and analytical relevance of accessory liability altogether in equity and tort law or propound a conceptual framework for accessory liability that is fixed in its application and uniform in its content across the whole of private law. Our purpose in this article is to resist both the dismissal, and simplification, of accessory liability in private law.
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Footnotes
*
Professor of Law, Australian National University. Address for Correspondence: ANU College of Law, Bld 5, Fellows Rd, Acton ACT 2600, Australia. Email: pauline.ridge@anu.edu.au.
**
Professor of Law, Bond University.
We are grateful to the anonymous reviewers for their generous and constructive reviews.
References
1 See generally Dietrich, J. and Ridge, P., Accessories in Private Law (Cambridge 2015)CrossRefGoogle Scholar.
2 Although it will be necessary in Section III(C) to consider briefly the criminal law of complicity, the fundamental differences between civil and criminal law, as well as the complexity and confusion surrounding criminal accessory and related liabilities, make anything other than peripheral consideration of the criminal law unwise and unhelpful.
3 We use the term “wrong” in a broad, but conventional, sense to mean breach of a legal duty that leads to remedial outcomes and as including breaches of common law and equitable duties. Breaches of statutory duty that give rise to private action also come within the ambit of “wrong”.
4 Cf. Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 A.C. 378, 392; and OBG Ltd. v Allan [2007] UKHL 21, [2008] 1 A.C. 1, at [39]–[44].
5 See Royal Brunei Airlines Sdn Bhd [1995] 2 A.C. 378, 387; Twinsectra Ltd. v Yardley [2002] UKHL 12, [2002] 2 A.C. 164; Abou-Rahmah v Abacha [2006] EWCA (Civ) 1492, [2007] Bus.L.R. 220. See further Section IV(B)(3).
6 Royal Brunei Airlines Sdn Bhd [1995] 2 A.C. 378, 387.
7 See Farah Constructions Pty Ltd. v Say-Dee Pty Ltd. (2007) 230 C.L.R. 89.
8 Ibid.
9 Ibid.
10 See further Dietrich and Ridge, Accessories, at [6.2.1].
11 Ibid., at ch. 6.
12 OBG Ltd. [2007] UKHL 21, [2008] 1 A.C. 1.
13 See Baxter v Obacelo Pty Ltd. [2001] HCA 66, (2001) 205 C.L.R. 635, at [24].
14 See e.g. Hume v Oldacre (1816) 1 Starke 351, 171 E.R. 494; Schumann v Abbot [1961] S.A.S.R. 149.
15 A different problem of distinguishing primary from accessory liability arises in categorising some causes of action. For example, the tort of conspiracy largely overlaps with accessory liability, but has a remnant, distinct sphere of operation that does not. This means that conspiracy cannot be categorised as a form of accessorial liability, though most examples of conspiracy would also, factually, be able to substantiate a claim of joint tortfeasance as accessories. See Dietrich and Ridge, Accessories, at [5.3.2]. For a more radical reordering of the law, see Davies, P. and Sales, P., “Intentional Harms, Accessories and Conspiracies” (2018) 134 L.Q.R. 69Google Scholar.
16 It should also be noted that the fact that a person's liability is dependent upon another party committing a wrong does not mean that the liability is always accessorial. Vicarious liability is an obvious example. Another example is that a defendant may be independently liable for negligently failing to prevent a tortfeasor's tortious conduct that harms C. See e.g. Smith v Leurs (1945) 70 C.L.R. 256, 262. In neither example will the defendants have knowingly involved themselves in the third party's wrongdoing.
17 The over-proliferation of terms is a product of the independent development of accessory liability in different areas of law.
18 Lifeplan Australia Friendly Society Ltd. v Ancient Order of Foresters in Victoria Friendly Society Ltd. (2017) 250 F.C.R. 1. An appeal to the High Court of Australia was allowed as to the quantification of the profit: see Ancient Order of Foresters in Victoria Friendly Society Ltd. v Lifeplan Australia Friendly Society Ltd. [2018] HCA 43.
19 Novoship (UK) Ltd. v Mikhaylyuk [2014] EWCA (Civ) 908, [2015] Q.B. 499.
20 Lifeplan Australia Friendly Society Ltd. (2017) 250 FCR 1, at [68].
21 Michael Wilson & Partners Ltd. v Nicholls (2011) 244 C.L.R. 427, 457, at [106].
22 Ancient Order of Foresters in Victoria Friendly Society Ltd. [2018] HCA 43, at [76]–[77].
23 Ibid., at para. [77], citing Williams v Central Bank of Nigeria [2014] UKSC 10, [2014] A.C. 1189, at [9].
24 Ibid.
25 Twinsectra Ltd. [2002] UKHL 12, [2002] 2 A.C. 164 (following Royal Brunei Airlines Sdn Bhd [1995] 2 A.C. 378); Abou-Rahmah [2006] EWCA (Civ) 1492, [2007] Bus.L.R. 220 (following Barlow Clowes International Ltd. (in liq) v Eurotrust International Ltd. [2005] UKPC 37, [2006] 1 W.L.R. 1476). In Australia, see Michael Wilson & Partners Ltd. (2011) 244 C.L.R. 427, 457, at [106].
26 Worthington, S., “Exposing Third-party Liability in Equity: Lessons from the Limitations Rules” in Davies, P.S. and Penner, J.E. (eds.), Equity, Trusts and Commerce (Oxford 2017), 331Google Scholar. The catalyst and context for Worthington's arguments is the Limitation Act 1980 (UK) and its interpretation by the UK Supreme Court in Williams [2014] UKSC 10, [2014] A.C. 1189. We do not seek to defend that decision in our evaluation of Worthington's arguments.
27 Worthington, “Exposing Third-party Liability in Equity”, p. 338.
28 Ibid., at p. 341.
29 Ibid., at pp. 339–40.
30 This is due, in our view, to terminological confusion regarding the meaning of “primary wrong”. See particularly ibid., at p. 346 where it is argued that liability for procuring a breach of trust or fiduciary duty cannot be accessory liability “since the ‘primary’ or instigating wrong is the inducer's, not the trustee's or fiduciary's”. This is a novel use of “primary” and misunderstands its meaning in the context of “primary wrong”. The adjective “primary” in its ordinary use does not describe the chronology of wrongdoing or how the wrong originated, but rather the origin of C's rights against PW and A.
31 We will not evaluate the force or otherwise of her reasoning as it applies to recipient liability or to the liability of innocent donees of misappropriated trust property. The case for assimilating these liabilities with trust and fiduciary law is stronger than that for assistance-based liability because of the requisite trust property element.
32 Worthington, “Exposing Third-party Liability in Equity”, pp. 332–33.
33 Ibid., at p. 345.
34 See e.g. Fyffes Group Ltd. v Templeman [2000] 2 Lloyd's Rep 643, 669; Novoship (UK) Ltd. [2014] EWCA (Civ) 908, [2015] Q.B. 499, at [76] (citing Consul Development Pty Ltd. v DPC Estates Pty Ltd. (1975) 132 C.L.R. 373, 397).
35 Royal Brunei Airlines Sdn Bhd [1995] 2 A.C. 378, 386–87.
36 See e.g. Zhu v Treasurer of New South Wales (2004) 218 C.L.R. 530, at [120]–[121].
37 Novoship (UK) Ltd. [2014] EWCA (Civ) 908, [2015] Q.B. 499, at [76] (citing Consul Development Pty Ltd. (1975) 132 C.L.R. 373, 397).
38 Royal Brunei Airlines Sdn Bhd [1995] 2 A.C. 378, 386–87.
39 Millett, Lord, “The Common Lawyer and the Equity Practitioner” (2015) 6 UK Supreme Court Yearbook 175Google Scholar, at 179.
40 Worthington, “Exposing Third-party Liability in Equity”, p. 345.
41 See e.g. Twinsectra Ltd. [2002] UKHL 12, [2002] 2 A.C. 164, at [107], per Lord Millett: “liability for misdirected funds”; Williams [2014] UKSC 10, [2014] A.C. 1189, at [9], per Lord Sumption J.S.C., Lord Hughes J.S.C. agreeing: “participation in the unlawful misapplication of trust assets.”
42 Novoship (UK) Ltd. [2014] EWCA (Civ) 908, [2015] Q.B. 499, at [91], per Longmore, Moore-Bick and Lewison L.JJ., quoting J.D. Wetherspoon plc. v Van de Berg & Co. Ltd. [2009] EWHC 639, at [510]–[520], per Peter Smith J. See further Dietrich and Ridge, Accessories, at [8.3.1.3].
43 Consul Development Pty Ltd. (1975) 132 C.L.R. 373; Farah Constructions Pty Ltd. (2007) C.L.R. 89.
44 Cf. Vestergaard Frandsen A/S v Bestnet Europe Ltd. [2013] UKSC 31, [2013] 1 W.L.R. 1556. See also, OBG Ltd. [2007] UKHL 21, [2008] A.C. 1, at [276].
45 Worthington, “Exposing Third-party Liability in Equity”, p. 343.
46 Ibid.
47 See e.g. Patents Act 1977 (UK), s. 61; Dart Industries Inc v Decor Corporation Pty Ltd. (1993) 179 C.L.R. 101.
48 Peter Pan Manufacturing Corp v Corsets Silhouette Ltd. [1964] 1 W.L.R. 96, 106; OBG Ltd. [2007] UKHL 21, [2008] A.C. 1, at [276].
49 Novoship (UK) Ltd. [2014] EWCA (Civ) 908, [2015] Q.B. 499: Ancient Order of Foresters in Victoria Friendly Society Ltd. [2018] HCA 43. See also Michael Wilson & Partners Ltd. (2011) 244 C.L.R. 427, 457, at [106].
50 See e.g. Worthington, “Exposing Third-party Liability in Equity”, pp. 357–58. See further Section IV below concerning the prioritisation of uniformity and simplicity in the law.
51 Worthington, “Exposing Third-party Liability in Equity”, p. 345.
52 Ibid., at pp. 339–40.
53 We acknowledge that the traditional language of constructive trusts may be used to support Worthington's analysis, however, that language is equally supportive of an accessorial analysis: Dietrich and Ridge, Accessories, at [8.1.7].
54 See R. Stevens, Torts and Rights (Oxford 2007).
55 IL v The Queen [2017] HCA 27, (2017) 262 C.L.R 268.
56 See Stevens, Torts and Rights, pp. 275–76, 256–57.
57 Ibid., at p. 262.
58 Ibid., at p. 257.
59 Miller v R. [2016] HCA 30, (2016) 259 C.L.R. 380.
60 See generally Bilta (UK) Ltd. v Nazir (No 2) [2015] UKSC 23, [2016] A.C. 1.
61 Ibid.
62 Majrowski v Guy's and St. Thomas’ NHS Trust [2006] UKHL 34, [2007] 1 A.C. 224, and see Giliker, P., Vicarious Liability in Tort: A Comparative Perspective (Cambridge 2010), 15CrossRefGoogle Scholar, concluding that attribution of liability is the dominant view in the UK; but contra. Stevens, Torts and Rights, pp. 257ff., who concedes that the attribution of liability is the current judicial position, but argues for the attribution of acts model. See also Stevens, R., “Vicarious Liability or Vicarious Action?” (2007) 123 L.Q.R. 30Google Scholar. The UK Supreme Court's recent efforts at fundamentally reframing vicarious liability to produce “a modern theory of vicarious liability” (in the words of Lord Reed in Cox v Ministry of Justice [2016] UKSC 10, [2016] A.C. 660, at [24], describing the Supreme Court's decision in The Catholic Child Welfare Society v Various Claimants and the Institute of the Brothers of the Christian Schools [2012] UKSC 56, [2013] 2 A.C. 1) have focused on where the boundaries of liability should be drawn. They have not revisited the older debate as to the competing merits of theories of vicarious liability that concern the attribution of liability versus attribution of acts. See also e.g. P. Giliker, “Analysing Institutional Liability for Sexual Abuse in England and Wales and Australia: Vicarious Liability, Non-delegable Duties and Statutory Intervention” [2018] C.L.J. 506. In Australia, see e.g. Kable v State of New South Wales (2012) 268 F.L.R. 1, 18–19, at [52]–[53]. However, recently the question as to whether vicarious liability is based on the attribution of liability or the attribution of acts was said to still be open in Australia: Pioneer Mortgage Services Pty Ltd. v Columbus Capital Pty Ltd. [2016] FCAFC 78, at [48]–[58], per Davies, Gleeson and Edelman J.J.
63 See Crimes Act 1900 (NSW), s. 18.
64 IL [2017] HCA 27, (2017) 262 C.L.R. 268, at [25].
65 Ibid., at para. [2]. See also para. [26]. See also Dyer, A., “The ‘Australian Position’ Concerning Criminal Complicity: Principle, Policy or Politics” (2018) 40 Syd.L.R. 289Google Scholar, 294.
66 Ibid., at para. [29].
67 Ibid., at para. [30] (citing Osland v The Queen (1998) 197 C.L.R. 316, 341–42, at [71]).
68 Ibid., at para. [34], citing Pioneer Mortgage Services Pty Ltd. [2016] FCAFC 78, at [48]–[56]. See also Gageler J. at [103] (agreeing that acts are attributed for purposes of joint criminal liability) but, at [107], leaving open whether extended joint criminal enterprise liability is primary or derivative. Contrast Bell and Nettle J.J. at [65], who conclude that it is only the acts of the other party that comprise the actus reus of an offence, that are to be attributed.
69 As to whether (1) joint criminal enterprise is a form of accessory liability and (2) the level of fault that is required to establish is the same as it is for aiding and abetting accessory liability, see Jogee v R. [2016] UKSC 8, [2016] 2 All E.R. 1; R. v Ruddock [2016] UKPC 7, [2016] 2 W.L.R. 681 (on joint appeal, answering yes to both questions); cf. Miller v The Queen (2016) 259 C.L.R. 380 and Hksar v Chan Kam Shing [2016] HKCFA 87, answering no to both questions. See further Simester, A., “Accessory Liability and Common Unlawful Purpose” (2017) 133 L.Q.R. 73Google Scholar.
70 See e.g. Elliott, S. and Mitchell, C., “Remedies for Dishonest Assistance” (2004) 67 M.L.R. 16CrossRefGoogle Scholar; Sales, P., “The Tort of Conspiracy and Civil Secondary Liability” [1990] C.L.J. 491CrossRefGoogle Scholar, at 502ff.
71 Stevens, Torts and Rights, p. 257.
72 Evaluation of the plurality's statements in IL [2017] HCA 27, (2017) 262 C.L.R. 268 as they apply to forms of criminal accessory liability is beyond the scope of this article.
73 Cf. Stevens, Torts and Rights, p. 256.
74 Whether mere assistance alone suffices in tort law as a conduct element for accessory liability in tort law is still an open question, though the UKSC's decision in Sea Shepherd UK v Fish & Fish Ltd. [2015] UKSC 10, [2015] A.C. 1229 would seem to suggest that assistance only suffices if a further element of a common design is made out, but does not spell out what further conduct (or mental state) is needed to establish such design.
75 We are indebted to one of the anonymous reviewers for this point.
76 One can then go on to argue that if the agreement, or joint or mutual intention of the parties, is the underlying rationale for such attribution, then such attribution also applies to Y even where X alone has performed all the conduct elements of an offence or wrong, so long as X acted as part of the agreed plan with Y.
77 See Ormerod, D., Smith and Hogan's Criminal Law, 13th ed. (Oxford 2011), 190CrossRefGoogle Scholar. Cf. R. v Gnango [2011] UKSC 59, [2012] 1 A.C. 827, at [129], per Lord Kerr; and see R. v Kennedy (No. 2) [2007] UKHL 38, [2008] Crim L.R. 223. This is also the position in Australian Criminal Code states (see e.g. R. v Sherrington and Kuchler [2001] QCA 105), but is contrary to the position at Australian common law: see e.g. Osland (1998) 197 C.L.R 316.
78 IL [2017] HCA 27, (2017) 262 C.L.R. 268, at [2], [26], [29].
79 As Simester, “Accessory Liability and Common Unlawful Purpose”, p. 77, states, it is “entirely sensible” that a conspirator in a joint criminal enterprise (JCE) is viewed as an accomplice (or aider and abettor) for the crime agreed to. The conspiracy is itself a form of participation. He takes this view while defending a distinct approach to extended JCE liability where a further and different crime is committed.
80 This is a different question to whether a claim needs to have been brought against PW, the answer to which is unproblematic: no.
81 Certainly, the opposite appears to be the position in English law. See e.g. Bourne v R. (1952) 36 Cr.App.R 125; R. v Austin [1981] 1 All E.R. 374; R. v Cogan [1976] Q.B. 217. The “no liability for one, no liability for the other” rule is also undermined by the fact that for aiding and abetting liability, in Australian common law, an accused can be found liable for a more serious offence than the principal offender. See e.g. Likiardopoulos v R. (2012) 247 C.L.R. 265.
82 Similarly, where a young child lacking capacity commits an “offence”: see Schultz v Pettitt (1980) 25 S.A.S.R. 427. Some statutory schemes are explicit on the point: e.g. Criminal Code 1995 (Cth), s. 11.2(5).
83 This may require a reinterpretation of cases contrary to the reasons actually given: see the explanation of the English cases cited at note 81 above by McHugh J. in Osland (1998) 197 C.L.R. 316 and IL [2017] HCA 27, (2017) 262 C.L.R. 268, at [34]–[40], per Kiefel C.J., Keane and Edelman J.J., as being based on joint criminal enterprise, rather than aiding and abetting (accessory) liability. Cf. Bell and Nettle J.J. in IL, at [83]–[88].
84 The term “innocent agency” is of uncertain meaning and the limitations that apply to that principle are not clear and therefore that concept is not necessarily helpful as an explanatory concept. Further, the term can be used to refer to two, sometimes not easily distinguishable, situations. These are (1) where the defendant is an accessory to an (excused) wrongful act, such as probably where an insane person decides to kill X and A aids him by providing him with poison: Williams, G., “Theory of Excuses” (1982) C.L.R. 732Google Scholar, particularly at pp. 735–38 (the accused is not an accountable agent but the underlying wrongfulness of the conduct is not removed); or (2) where the defendant is the only principal offender against whom all elements of the offence can be made out, albeit perhaps through indirect conduct (e.g. defendant gives X food to feed victim that unbeknownst to X is poisoned: cf. R. v Michael (1840) 9 C.& P. 356, 173 E.R. 867). Cf. the discussion of innocent agency in IL [2017] HCA 27, (2017) 262 C.L.R 268, at [81]–[88], per Bell and Nettle J.J.
85 See Williams, “Theory of Excuses”, p. 737.
86 See cases cited in note 81 above, and note also Gibbs J. in Matusevich v R. (1977) 137 C.L.R. 633, 636. Cf. Gibbs J. in White v Ridley (1978) 140 C.L.R. 342, 346–47.
87 See Dietrich and Ridge, Accessories, at [3.6].
88 E.g. for inducing breach of contract, the breaching party need not be liable, either because the contract is unenforceable or because the breaching party has excluded the liability to pay damages for breach. See Dietrich and Ridge, Accessories, at [6.3.2]. Similarly, in equity a trustee's liability for breach of trust might be excused, whereas the procurer of the breach would remain liable. See also Michael Wilson & Partners Ltd. (2011) 244 C.L.R. 427.
89 See the operation of defences based on the absence of malice in defamation law, which only apply as against those joint tortfeasors who are activated by malice but not against the others: see Cornwall v Rowan [2004] SASC 384, at [452]; and Egger v The Viscount Chelmsford (1965) 1 Q.B. 248, 265.
90 Fistar v Riverwood Legion and Community Club Limited (2016) 91 N.S.W.L.R. 732, 743–44, at [48]–[53], per Leeming J.A.
91 P.S. Davies, Accessory Liability (Oxford 2015).
92 Birks, P., “Civil Wrongs: A New World” in Reynolds, F.M.B. and Birks, P. (eds.), Butterworth Lectures 1990–91 (London 1992), 100Google Scholar.
93 Davies, Accessory Liability. Davies's book was published too late for us evaluate it in Dietrich and Ridge, Accessories.
94 Sales, “The Tort of Conspiracy and Civil Secondary Liability”.
95 Davies, Accessory Liability, p. 1.
96 Ibid., at p. 283.
97 Ibid., at p. 283: “[C]onsciously turning a blind eye to known facts.”
98 Ibid., at pp. 44–47, 53, ch. 9.
99 Ibid., at p. 285.
100 Ibid., at p. 283.
101 Recently, Sir Richard Arnold and Davies have called for legislation to be amended to delete specific provisions that impose accessory liability on the basis of different (statutory) principles rather than on general tortious accessory principles. Arnold, Sir R. and Davies, P., “Accessory Liability for Intellectual Property Infringement: The Case of Authorisation” (2017) 133 L.Q.R. 442Google Scholar, particularly 443–44, 466–68 (arguing for the removal of statutory liability for “authorising” a breach of copyright so as to provide for uniform accessory rules). Their assumption is that the outcomes of the application of the two distinct tests would be the same. That may be an arguable proposition in English law, but is improbable in Australian law. See e.g. Career Step, LLC v TalentMed Pty Ltd. (No 2) [2018] FCA 132.
102 See Leeming, M., “Theories and Principles Underlying the Development of the Common Law – the Statutory Elephant in the Room” (2013) 36 UNSW Law Journal 1002Google Scholar; Grantham, R. and Jensen, D., “Coherence in the Age of Statutes” (2016) 42 Mon.L.R. 360Google Scholar.
103 Cf. D. Foxton, “Accessory Liability and Section 213 Insolvency Act 1986” [2018] J.B.L. 324.
104 Burrows, A., “The Relationship Between Common Law and Statute in the Law of Obligations” (2012) 128 L.Q.R. 232Google Scholar. For specific examples, see Dietrich, J., “The Liability of Accessories under Statute, in Equity, and in Criminal Law: Some Common Problems and (Perhaps) Common Solutions” (2010) 34 M.U.L.R. 106Google Scholar; Bant, E., “Statute and Common Law: Interaction and Influence in Light of the Principle of Coherence” (2015) 38 UNSW Law Journal 367Google Scholar, at 382–85.
105 See the examples given in the text to notes 5–9 above. The influential judgment of Finn, Stone and Perram J.J. in the Federal Court of Australia in Grimaldi v Chameleon Mining NL (No 2) (2012) 200 F.C.R. 296 at [247], albeit encompassing equitable participatory liability more generally, captures the dynamic operation of the law: “[P]articipatory liability as it evolved in equity … was not based on inflexible formulae. Given the variety of circumstances in which, and bases on which, a third party could be characterised as a wrongdoer in equity…varying importance has been given to three matters: (i) the nature of the actual fiduciary or trustee wrongdoing in which the third party was a participant; (ii) the nature of the third party's role and participation, for example as alter ago, inducer or procurer, dealer at arm's length, etc; and (iii) the extent of the participant's knowledge or, assumption of the risk of, or indifference to, actual, apprehended or suspected wrongdoing by the fiduciary.”
106 See Davies, Accessory Liability, pp. 127–29, referring to Finn, P.D., “The Liability of Third Parties for Knowing Receipt or Assistance” in Waters, D.W.M. (ed.), Equity, Fiduciaries and Trusts (Toronto 1993), 215–217Google Scholar; Ridge, P., “Participatory Liability for Breach of Trust or Fiduciary Duty” in Glister, J. and Ridge, P. (eds.), Fault Lines in Equity (Oxford 2012), 139Google Scholar.
107 Davies, Accessory Liability, pp. 127–29, 282.
108 Ibid., at pp. 128–29.
109 Ibid., at p. 282.
110 Sea Shepherd UK [2015] UKSC 10, [2015] A.C. 1229, at [56].
111 See e.g. Davies, Accessory Liability, pp. 114–16.
112 See e.g. ibid., at pp. 203–05.
113 See e.g. ibid., at pp. 66–68.
114 In some scenarios wilful blindness may be apparent, but not all scenarios could be made to fit that characterisation. Cf., in the context of inducing breach of contract, the fact that it is not for A to claim that for all she knew, there may have been a lawful way for PW to terminate the contract. See e.g. Delphic Wholesalers Pty Ltd. v Elco Food Co. Pty Ltd. (1987) 8 I.P.R. 545, at 553–54.
115 Davies, Accessory Liability, pp. 129–30, criticises the view of one of us, Ridge, “Participatory Liability for Breach of Trust or Fiduciary Duty”, pp. 131–41, that benefit to A is a relevant consideration in assessing A's culpability. We adhere to that view: Dietrich and Ridge, Accessories, at [8.3.2.3]. Such benefit strengthens the likelihood of liability for reckless conduct.
116 See e.g. Imobilari Pty Ltd. v Opes Prime Stockbroking Ltd. [2008] FCA 1920, at [28], per Finkelstein J. The same position appears to apply in the tort of inducing breach of contract, where A may be liable where there is a substantial risk that PW will breach her contract. An inducer of a breach of contract can rarely know the precise terms of PW's contract and PW's options, lawful or otherwise, as to how to respond to A's inducing conduct. Requiring near certainty of breach (that is, actual knowledge that PW will breach), rather than merely a high degree of risk of such a breach, would make A's liability almost impossible to establish.
117 See Dietrich and Ridge, Accessories, at [3.4.2.2].
118 For example, in the tort of inducing breach of contract, it suffices that A was recklessly indifferent to the possibility that PW's conduct amounts to a breach; that is, it need not be a near certainty that a breach will occur. Similarly, the law is particularly complex concerning the liability of directors and officers for company wrongdoing, especially where they have procured the company to engage in conduct that turns out to be wrongful. Although most cases are consistent with the need for some knowledge, this need not necessarily be actual knowledge. See e.g., seemingly accepting a recklessness standard, that an infringement was substantially likely to follow, Societa Esplosivi Industriali SpA v Ordnance Technologies (UK) Ltd. (No 2) [2007] EWHC 2875 (Ch), [2008] 2 All E.R. 622, particularly pp. 649–50, at [95], per Lindsay J., and the state of knowledge of the director in that case. In limited circumstances directors may be liable (albeit, unusually so) even in the absence of knowledge of the wrongfulness of the company's conduct: that is, liability may be tantamount to strict. Particularly in the context of intellectual property infringements, the predominant view appears to be that A (a director or officer) need not necessarily know that PW Co.’s conduct is wrongful, that is tortious or infringing. See e.g. Microsoft Corporation v Auschina Polaris Pty Ltd. (1996) 71 F.C.R. 231, 235, per Lindgren J. That proposition seems uncontroversial. See also C Evans & Sons Ltd. v Spritebrand Ltd. [1985] 2 All E.R. 415, 424–25, per Slade L.J., followed, for example, in Handi-Craft Company v B Free World Ltd. [2007] EWHC B10 (Pat.), but also rejected, for example, in Root Quality Pty Ltd. v Root Control Technologies Pty Ltd. (2000) 177 A.L.R. 231, at [136].
119 See Farah Constructions Pty Ltd. (2007) 230 C.L.R. 89, at [177]; and Consul Development Pty Ltd. (1975) 132 C.L.R. 373. It is level (iv) knowledge under the Baden scale: Baden v Société Générale pour Favoriser le Développement du Commerce et de l'Industrie en France S.A. [1993] 1 W.L.R. 509.
120 Farah Constructions Pty Ltd. (2007) 230 C.L.R. 89, at [177]; Grimaldi (2012) F.C.R. 296, at [267].
121 Royal Brunei Airlines Sdn Bhd [1995] 2 A.C. 378, 390.