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Accessorial liability in the law of torts

Published online by Cambridge University Press:  02 January 2018

Joachim Dietrich
Joachim Dietrich*
Affiliation:
Bond University, Australia
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Abstract

This paper considers the scope and limits of accessorial liability in the law of torts. It argues that the issue has been under-analysed, in part because such liability is encompassed under the label of ‘joint tortfeasorship’. Analysis of the question of accessorial liability needs to focus on two questions: what is the requisite involvement of the ‘accessory’ and what is the requisite mental state of the accessory when committing those acts? The paper seeks to define the precise limits of these two requirements and argues, after an analysis of the English and Australian authorities, that the current tests for accessorial liability, in rejecting liability for ‘mere’ assistance, are too narrowly stated.

Type
Research Article
Information
Legal Studies , Volume 31 , Issue 2 , June 2011 , pp. 231 - 258
Copyright
Copyright © Society of Legal Scholars 2011

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References

1. This tort has been characterised by some as a form of accessorial liability to a breach of contract. In Zhu v Treasurer of New South Wales [2004] HCA 56 at [121]–[122], the joint judgment described the tort of inducing breach of contract in the same terms as other forms of accessorial liability. Such a characterisation is rejected, however, by S Deakin and J Randall ‘Rethinking the economic torts’ (2009) 72 Modern Law Review 519 particularly at 520. Compare also PW Lee ‘Inducing breach of contract, conversion and contract as property’ (2009) 29 Oxford Journal of Legal Studies 511 at 522.

2. The term ‘secondary’ liability is best avoided for four reasons. (1) The term is sometimes used to connate not only accessorial liability, but also other types of liability, such as vicarious liability (P Sales ‘The tort of conspiracy and civil secondary liability’ (1990) 49 Cambridge Law Journal 491 at 502–503) – vicarious liability is distinguished further at 1(b) below. (2) The term is considered by some commentators to be inapt because they perceive accessorial liability regimes as generating primary wrongs: see below n 14. In my view, this misconceives the issue: if the ‘primary’ wrong is established by participation in another's wrong, it is still accessorial liability. (3) The term is said by some to dictate certain outcomes (eg as to remedy); in the context of liability in equity for knowing assistance in a breach of trust or fiduciary duty, see S Elliott and C Mitchell ‘Remedies for dishonest assistance’ (2004) 67 Modern Law Review 16. (4) The term ‘secondary liability’ might be confused with the term ‘secondary’rights, which are the remedial responses arising from the commission of a wrong, with different events generating the various ‘primary’ rights that have been infringed (see, eg, Stevens, R Torts and Rights (Oxford: Oxford University Press, 2007) ch 2CrossRefGoogle Scholar, and particularly p 285 onwards).

3. The terms are used here interchangeably. Cf Sales, above n 2, at 503.

4. Lumley v Gye (1853) 2 E & B 216 at 232 per Erle J.

5. Allen v Flood [1898] AC 1 at 106–107 per Lord Watson, citing Erle J's judgment in Lumley v Gye, above n 4, at 232 with approval.

6. The Koursk [1924] P 140 at 155 per Scrutton LJ (CA).

7. Ibid, at 152 per Bankes LJ (emphasis added).

8. Ibid, at 155 per Scrutton LJ and 159 per Sargent LJ, both quoting from Clerk and Lindsell on Torts (London: Sweet & Maxwell, 7th edn) pp 59–60.

9. Above n 6.

10. Ibid, at 159–160 per Sargent LJ, quoting Clerk and Lindsell on Torts, above n 8, pp 59–60. Both the narrower and wider formulations are cited with approval by Gummow J (Gaudron J agreeing) in the High Court of Australia in Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 580.

11. Cf, eg, Balkin, RP and Davis, JLR Law of Torts (Sydney: LexisNexis Butterworths, 4th edn, 2009) [1.7]–[1.22].Google Scholar It is outside the scope of this paper to consider various theories of torts law itself, though for what it is worth, I do not subscribe to the view that any single underlying theory explains torts law.

12. See generally J Dietrich ‘The liability of accessories under statute, in equity, and in criminal law: some common problems and (perhaps) common solutions’ (2010) 34 Melbourne University Law Review (forthcoming).

13. Barker v Braham and Norwood (1773) 3 Black W 866 at 868 per De Grey CJ (reference omitted).

14. See, eg, Stevens, above n 2, pp 256–257 and 275.

15. Ibid, p 275. See generally ch 11. Some circumstances are explicable in terms of attribution and not in terms of accessorial liability. Eg, where D asks X to make a statement to P that D knows to be false, but that X believes to be true, D, but not X, may have committed the tort of deceit. D is the principal and only tortfeasor and X's words are attributed to D. See R Stevens ‘Nondelegable duties and vicarious liability’ in Neyers, JN, Chamberlain, E and Pitel, SGA (eds) Emerging Issues in Tort Law (Oxford: Hart Publishing, 2007) p 331 at pp 333–224.Google Scholar

16. London: Stevens, 1951. Similarly, in the USA, W Freedman Joint and Several Liability: Allocation of Risk and Apportionment of Damages (Massachusetts: Butterworths Legal Publishers, 1987) is concerned with procedural matters and contribution. More recently, there have been a few articles, eg, by Sales, above n 2; H Carty ‘Joint tortfeasance and assistance liability’ (1999) 19 Legal Studies 489; and, with a more narrow focus, N Foster ‘Personal civil liability of company officers for company workplace torts’ (2008) 16 TLJ 20. Textbook writers often give the topic scant treatment: eg, Balkin and Davis, above n 11, at [29.25], devote merely one paragraph to this category of ‘joint tortfeasors’.

17. This can lead to confusion. See, eg, Hoath v Connect Internet Services[2006] NSWSC 158; cf Johnson Matthey (Aust) Ltd v Dascorp Pty Ltd[2003] VSC 291, in which Redlich J clearly identifies the question arising in that case as one of accessorial liability, but also uses the label joint tortfeasor.

18. As Finn J does in Oakley Inc v Oslu Import and Export Pty Ltd[2001] FCA 385 at [5].

19. For an early example, see Mitchell v Tarbutt and Others (1794) 5 TR 649. Exceptions to this rule now arise under statutes that impose proportionate liability in some contexts.

20. This means that even if several distinct torts are committed, each party to the common endeavour is liable for all the damage caused by all of the different torts. The classic case is Smithson v Garth (1691) 3 Lev 323 at 324, in which the court held that if parties have been charged ‘jointly with the whole entire matter...being all done at one time’ then each is liable for the whole damage, even if ‘one of them committed the battery, another the imprisonment, another took the [silver] buttons’.

21. See, eg, Hume v Oldacre (1816) 1 Starke 351 (defendant hunter liable in trespass for damage caused by concourse of people accompanying him, as he was a ‘cotrespasser’). Similarly, if one party did ‘greater wrong’ than the other (Heydon's Case (1584) 11 Co Rep 4b at 5b) or one party has acted with malice and the other has not, each is still liable for ‘aggregate’ injury suffered from both parties (Clark v Newsam and Edwards (1847) 1 Ex 130 at 140 per Alderson B: false imprisonment). However, more recent decisions have held otherwise in relation to aggravated and exemplary damages (McFadzean and Others v Construction, Forestry, Mining & Energy Union[2004] VSC 289 at [116] and [141]–[142]; appeal by plaintiffs in relation to their unsuccessful claims dismissed in McFadzean v Construction, Forestry, Mining & Energy Union (2007) 20 VR 250 (CA)).

22. [2001] HCA 66 at [24]; footnotes in the original.

23. G Williams Joint Torts and Contributory Negligence (Stevens & Sons, 1951) § 1 at 1.

24. (1996)186 CLR 574 at 580–581.

25. See generally, Balkin and Davis, above n 11, ch 26; Luntz, H et.al Torts Cases and Commentary (Sydney: LexisNexis Butterworths, 6th edn, 2009) ch 17Google Scholar; Trindade, F, Cane, P and Lunney, M The Law of Torts in Australia (Melbourne: Oxford University Press, 4th edn, 2007) ch 16.Google Scholar Vicarious liability may be based on policy grounds (eg loss distribution), status attribution (Stevens, above n 2, ch 11) or may be explicable on other grounds (see, eg, J Neyers, ‘A theory of vicarious liability’ (2005) 43 Alberta L Rev). The precise nature of, and hence the precise scope of, vicarious liability, is the subject of ongoing debate, but is not the concern of this paper. See also Sales, above n 2, at 502–503, who stresses that vicarious liability is based on ‘policy factors concerning the imposition of liability where it can best be borne’, but also describes it as a form of secondary liability.

26. See Carty, above n 16, at 490.

27. See Balkin and Davis, above n 11, at [26.11], pp 788–789. Nonetheless, there may be overlap between accessorial liability and vicarious liability in this context. Eg, where the authorisation is of wrongful conduct, there may be liability that is akin both to accessorial liability (an agent commits a specific trespass whilst doing the authorised wrongful act, such as searching P's premises: Schumann v Abbot[1961] SASR 149) and vicarious liability (the authorised party negligently damages the property whilst doing so).

28. Compare Stevens, above n 15, and J Murphy ‘Juridical foundations of common law nondelegable duties’ in Neyers et.al, above n 15, p 369, with, eg, the differing views of the judges in New South Wales v Lepore[2003] HCA 4. Stevens argues that nondelegable duties reflect the common law's diverse approach to fault and allow for the imposition of strict liability.

29. See, generally, Balkin and Davis, above n 11, at [21.43]–[21.56], pp 613–620. See also Sales, above n 2.

30. Ibid, at [21.51]–[21.52], pp 664–665.

31. [2007] FCA 151 at [191].

32. See Total Network SL v Her Majesty's Revenue and Customs[2008] UKHL 19, [2008] 1 AC 1174, ‘controversially’ so, in the view of Lee, above n 1, at 522.

33. See Sales, above n 2, at 511. Hence, the tort of unlawful interference in trade (OBG Ltd v Allan[2008] 1 AC 1) may not be made out against either party.

34. Beleggingen Exploitatiemaatschappij Lavender BV v Witten Industrial Diamonds Ltd[1979] FSR 59 at 66 per Buckley LJ, discussed in MCA Records Inc v Charly Records[2001] EWCA CIV 1441, [2002] ECDR 37.

35. See MCA Records v Charly Records, ibid, particularly at [33], relying on CBS Songs Ltd v Amstrad Consumer Electronics plc[1988] AC 1013.

36. The competing formulations are discussed, eg, in Johnson Matthey (Aust) Ltd v Dascorp Pty Ltd (2003) 9 VR 171 and the Australian position remains open: see Allen Manufacturing Co Pty Ltd v McCallum & Co Pty Ltd (2001) 53 IPR 400 and Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd[2002] FCAFC 157.

37. Hence, the liability of directors for a company's wrong may raise issues peculiar to that context; it has been asserted, eg, that general principles of accessorial liability in torts must be distinguished from principles that govern directors' liability for company torts. See WEA International Inc v Hanimex Corporation Ltd (1987) 10 IPR 349 at 359 (Federal Court of Australia (FCA)) per Gummow J; Microsoft Corp v Auschina Polaris Pty Ltd (1996) 36 IPR 224 at 233 (FCA) per Lindgren J. There also appears to be some confusion in the context of directors' liability as to whether the liability being imposed in individual cases is on the basis of the directors' participation in another's wrong (accessorial liability); or on the basis of the relationship between directors and company (vicarious liability); or on the basis of the directors' liability as a principal wrongdoer, the elements of a wrong being able to be established against the directors personally (eg breach of a duty of care). Sometimes, these distinctions are clearly drawn (eg Johnson Matthey, above n 36) but in other cases this is not clear (see, eg, Hoath v Connect Internet Services[2006] NSWSC 158).

38. [1989] RPC 583 at 602; cited with approval by Chadwick LJ (Tuckey and Simon Brown LJJ agreeing) in MCA Records v Charly Records, above n 34, at [31].

39. Eg Best Australia Ltd v Aquagas Marketing Pty Ltd (1988) 12 IPR 143 at 146 (FCA) per Wilcox J: ‘the principles applicable to joint tortfeasors equally apply to contraventions of those statutory rights which are enforceable by civil remedies’.

40. For a detailed summary of the law on ‘authorisation’ of breaches of copyright pursuant to s 101 of the Copyright Act 1968 (Cth), see TS and B Retail Systems Pty Ltd v 3Fold Resources Pty Ltd (No 3)[2007] FCA 151 at [161]–[176] per Finkelstein J and Roadshow Films Pty Ltd v iiNet Limited (No 3)[2010] FCA 24 (4 February 2010) per Cowdroy J, particularly [357]–[423]. As Finkelstein J notes at [161], ‘nothing is further from the truth’ than the view that ‘authorisation is a simple concept’.

41. Mustill LJ in Unilever plc v Gillette (UK) Limited[1989] RPC 583 at 608.

42. Contrast Mustill LJ, ibid, preferring the former view.

43. Sargent LJ in The Koursk, above n 6, at 159–160, quoting Clerk and Lindsell on Torts, above n 8, pp 59–60.

44. Sales, above n 2, at 507.

45. Ibid, at 507.

46. Eg, Carty, above n 16. Similarly, see Stevens, rejecting general accessorial liability, above text to nn 14–15.

47. This terminology is used in the context of criminal law.

48. Cf Gale v Shah; Gale v Grant & Others[2005] EWHC 1087 (QB).

49. And see 6(b) below as to whether one be an accessory to the tort of negligence.

50. Clark v Newsam and Edwards (1847) 1 Ex 130 at 140.

51. See text and notes below nn 58–60.

52. Cf Sales, above n 2, at 507. Consider also this scenario: A drives PT to P's house in order for PT to beat P. Had A not offered to drive, PT would have walked to P's house to commit the tort, irrespective of A's offer to help. Has A's conduct caused the tort against P? The circumstances that in fact occurred would not have occurred but for A's driving, but is this the relevant causal question, since P would still have been injured even if A had not driven PT?

53. Above n 35. It is no different to a concurrent tortfeasors whose acts are each a causal factor in the harm caused: the causal link of itself does not create a sufficient participation link. Cf The Koursk, above n 6.

54. Stevens, above n 2, at 254.

55. Sales, above n 2, at 509, fn 62, and 510, appears to agree, though the statements are equivocal. Contrast some of the conclusions in the cases, eg, Louis Vuitton Malletier SA v Toea Pty Ltd[2006] FCA 1443 at [165]–[170], where Dowsett J dismissed accessorial liability on the basis of a common design in part because the alleged accessory had no control or practical capacity to prevent the infringement of trademarks on its premises, suggesting something in the nature of some causative link between A's conduct and the commission of the principle wrongs.

56. Cf Fleming's support for a broad basis for liability absent any causal connection: ‘encouraging or merely being present as a conspirator at the commission of the wrong would suffice’: Fleming, J The Law of Torts (Sydney: The Law Book Co Ltd, 8th edn, 1992) p 256.Google Scholar

57. Carty, above n 16, takes assistance and ‘facilitation’ to mean that there is no causal connection between the acts of the accessory and the principal's decision to commit the wrong; eg, at 492, 493 and 502. Carty also makes the point that merely knowing of the risk of an ‘offence’, rather than intending that an ‘offence’ be committed, is thus insufficient. This statement does, however, conflate the mental state, with the necessary involvement: the assumption is that ‘assistance’ can never satisfy such a mental state. But could A not assist PT (who has independently decided to commit a wrong) intending that PT commit that wrong?

58. See below, text to nn 81–83. One could conceive of scenarios where accessory after the facttype liability seems justifiable; eg, where A supplies a baseball bat, but then discovers afterwards that the tort has been committed and refuses to identify the person (PT) to whom the bat was supplied. This precludes P from bringing an action against PT. Is accessorial liability warranted in such circumstances (thanks to Harold Luntz for suggesting this example)? The reason I would argue against such liability is partly pragmatic: since this paper already advocates an expansion of accessorial liability beyond the current authorities, such a further step is unlikely to be accepted. However, if A promises PT prior to PT's tort that A will assist PT after the act, then this is probably a form of encouragement and hence justifies accessorial liability on the principles suggested here (my thanks go to the anonymous referee for this example).

59. M'Laughlin v Pryor (1842) 4 Man & G 48.

60. Cargill v Bower (1878) 10 Ch D 502 at 514–515 per Fry J. This was alternatively formulated as applying to where directors ‘abstain from doing something which they are under an obligation to the deceived person to do in order to prevent fraud’.

61. See, eg, Trade Practices Act 1974 (Cth), s 75B.

62. See section 6(a) below.

63. See, generally, Dietrich, above n 12.

64. See, eg, Farah Constructions Pty Ltd v SayDee Pty Ltd[2007] HCA 22; Finkelstein J's summary in Imobilari Pty Ltd v Opes Prime Stockbroking Ltd[2008] FCA 1920 (17 December 2008) at [27]–[31].

65. [1989] RPC 583 at 609 (emphasis added).

66. Sales, above n 2, at 507.

67. Above n 41, at 609.

68. Gale v Shah, above n 48. The defendant was held not liable, however, for the death of the victim, killed with a knife, the existence of which she was unaware.

69. In relation to criminal law and the requisite degree of involvement, see, eg, R v Russell[1933] VLR 59 at 67 per Cussan ACJ, approved by Gibbs CJ and Mason J in Giorgianni v R (1985) 156 CLR 473 at 480 and 493, and as to the state of knowledge, see Giorgianni v R; R v Bainbridge[1959] 3 WLR 656, and the classic statement of Lord Goddard CJ in Johnson v Youden[1950] 1 KB 544 at 546–547. See also AP Simester ‘The mental element of complicity’ (2006) 122 Law Quarterly Review 578. In relation to equity, see, eg, Farah Constructions v SayDee, above n 64; Consul Developments v DPC Estates Pty Ltd (1975) 132 CLR 373; Barnes v Addy (1874) 9 Ch App 244 at 251–252; Royal Brunei Airlines Sdn Bhd v Tan[1995] 2 AC 378 (PC); Twinsectra Ltd v Yardley[2002] 2 AC 164 (HL); Barlow Clowes International Ltd (in liq) v Eurotrust International Ltd[2006] UKPC 37, [2006] 1 WLR 1476.

70. This is so in relation to the Corporations Act 2001 (Cth), s 79, the Trade Practices Act 1974 (Cth), s 75B(1), and other legislation, in which essentially the same approaches have been adopted in defining those who are ‘involved in a contravention’ of the relevant legislation.

71. Farah Constructions v Say Dee, above n 64, affirming Consul Developments v DPC Estates Pty Ltd (1975) 132 CLR 373

72. Credit Lyonnais Bank Nederland NV v Export Credit Guarantee Department[1998] 1 Lloyd's LR 19, particularly 42–46 per Hobhouse LJ. See also Lord Woolf in the House of Lords. Carty, above n 16, also rejects such analogies.

73. Above n 35, at 1059. Similarly, in the different context of the defence of self defence, Lord Scott of Foscote in Ashley v Chief Constable of Sussex Police[2008] UKHL 25, [2008] AC 962 at [18] noted that tort law needs to strike a balance between ‘conflicting rights’ of the plaintiff and defendant, whereas the criminal law does not need to strike such a balance and serves a different purpose. Cf also Lord Carswell at [76].

74. Giorgianni v R (1985) 156 CLR 473 at 500 and 506 per Wilson, Deane and Dawson JJ; and, eg, R v Bainbridge[1959] 3 WLR 656.

75. See HIH[2007] NSWSC 633 at [49], citing James Andrew Sweeney v State of Western Australia[2006] WASCA 118, and generally [48]–[51].

76. Ibid, at [51].

77. Above n 35.

78. Ibid, at 1058 (emphasis added).

79. Palmer Bruyn and Parker Pty Ltd v Parsons[2001] HCA 69 at [73] per Gummow J (similarly Gleeson CJ at [13]). See also Spigelman CJ (Mason P and Grove J concurring) in TCN Channel Nine Pty Ltd v Anning[2002] NSWCA 82 at [100], who states that ‘Although [Palmer Bruyn] involved [the tort of] injurious falsehood, the High Court's reasoning is of more general application to intentional torts’.

80. (1841) 174 ER 424 at 426 (Tindal CJ).

81. Ibid, at 426. Similarly: ‘One partner cannot drag another into his trespass without his previous consent or his after concurrence’.

82. (1773) 3 Black W 866 at 868 (references omitted).

83. See above n 27 and text thereto, and cf Stevens, above n 15, pp 333–335.

84. [1919] 1 KB 244 at 254 cites Tindall CJ in Petrie v Lamont. For a more extensive list of authorities, see Sales, above n 2, at 504, fn 39.

85. Above n 6, at 159–160, quoting Clerk and Lindsell on Torts, above n 8, pp 59–60.

86. Carty, above n 16, at 503–504 citing Credit Lyonnais, above n 72, particularly at 35 in the Court of Appeal (the same arguments were not raised in the House of Lords appeal).

87. Above n 72.

88. Ibid, at 44.

89. Ibid, 46. There is no shortage of supporting authorities: PLG Research Ltd v Ardon International Ltd[1993] FSR 197 at 238–239 per Aldous J (albeit dealing with director's liability for a patent infringement); Unilever v Gillette, above n 41, at 608–609; The Proctor & Gamble Co v Reckitt Benckiser (UK) Ltd[2006] EWHC 2872 at [17] per Warren J; MCA Records v Charly Records, above n 35, at [51].

90. [2002] EWCA Civ 976, [2003] RPC 14, Peter Gibson, Jonathan Parker, Longmore LJJ.

91. Ibid, at [59].

92. Ibid.

93. Ibid, at [58].

94. [2006] EWCA Civ 126 at [25] (Chadwick and Neuberger LJ agreeing) (emphasis added).

95. Gale v Shah, above n 48.

96. (1996) 186 CLR 574 at 600.

97. Cf Temple v Powell[2008] FCA 714 at [43] per Dowsett J.

98. [2004] VSC 289. The case concerned accessorial liability for false imprisonment, assault and battery, the intentional infliction of harm (‘Wilkinson v Downton’ liability) and public nuisance, arising out of conflicts between antilogging protestors and loggers. Joint liability was held to exist on the basis of Wilkinson, and public nuisance, but not on other grounds. An appeal by the plaintiffs in relation to their unsuccessful claims was dismissed, without discussion of accessorial liability principles: McFadzean v Construction, Forestry, Mining & Energy Union (2007) 20 VR 250 (CA); Special Leave to Appeal to the High Court refused: [2008] HCATrans 213 (23 May 2008).

99. Ibid, at [137] (references omitted). Ashley J at [138] notes that Glanville Williams narrowed this in the following ways: ‘First, mere presence will not make a person a joint tortfeasor. Second, a tortfeasor does not become a joint tortfeasor only because he knows that a similar tort is being committed by another at the same time’.

100. (1996)186 CLR 574 at 581.

101. [1985] 1 Qd R 127 at 132. See also Louis Vuitton v Toea Pty Ltd[2006] FCA 1443 at [148]–[164].

102. (1928) 41 CLR 331.

103. (1696) 5 Mod 163, 167.

104. (1928) 41 CLR 331 at 364 (footnotes and emphasis in original).This was approved, eg, in Commisso v United Telecasters Sydney Pty Ltd & 8 Others[1999] NSWSC 51 at [59].

105. Above n 104.

106. Ibid, at [63].

107. Zunter v Fairfax Publications Pty Ltd[2004] NSWSC 696 at [15].

108. (1995) 30 IPR 277 at 288–289. See also, eg, Caterpillar Inc v John Deere Ltd[1999] FCA 1503 (Full Court, Carr, Sundberg and Kenny JJ); Louis Vuitton Malletier, above n 55, at [163]–[164] per Dowsett J. The case of Ward Group Pty Ltd v Brodie and Stone plc[2005] FCA 471 (Merkel J) is more equivocal: see [60]–[61].

109. [1989] RPC 583.

110. (1933) 49 CLR 643.

111. See, eg, Dixon J in Walker v Alemite, ibid, at 643 and 657–658 (McTiernan J concurring) as to what constitutes participation: ‘...it is settled law that the exclusive property in a combination invention is not infringed upon by the sale of the components (Townsend v Haworth); that selling articles to persons to be used for the purpose of infringing a patent is not an infringement of the patent (per Fry J., Sykes v Howarth); and that sale with a knowledge that the purchaser will use the articles for infringement is not itself an infringement although the vendor gives the purchaser an indemnity: the vendor must have made himself a party to the act of infringement (per Mellish L.J., Townsend v Haworth; Dunlop Pneumatic Tyre Co. v David Moseley & Sons Ltd). Further, in the opinion of Vaughan Williams L.J., it is not enough that the article sold has no other use than a use in the course of what amounts to infringement...’ (footnote references deleted).

112. Ibid.

113. Ibid, at 658. However, this will not protect a supplier who has induced or procured the act of infringement, eg by supplying the purchasers with information as to how to use a product in breach of patent: Ramset Fasteners (Aust) Pty Ltd v Advanced Building Systems Pty Ltd (1999) 44 IPR 481 at 500 (FFCA). The restrictive policy adopted by the courts has been displaced by legislation in the context of Patents: Patents Act 1990 (Cth), s 117; and see Northern Territory v Collins[2008] HCA 49 (16 October 2008).

114. Generics (UK) Ltd v H Lundbeck A/S[2006] EWCA Civ 126.

115. See above n 40.

116. [2008] FCA 714 at [44].

117. Cf Foster, above n 16, at 37–39, who notes that in the context of directors' liability for company torts ‘different tort areas may warrant different treatment’.

118. (2003) 9 VR 171 at [150].

119. See Johnson Matthey (Aust) Ltd v Dascorp Pty Ltd (2003) 9 VR 171 at 195, Redlich J cites A Tettenborn, 52(1) Cambridge Law Journal 128 at 128 and 137.

120. Eg purchasers of goods are protected in some contexts under the Sale of Goods Acts.

121. Johnson Matthey v Dascorp, above n 119 is illustrative.

122. Cf Stoneman v Lyons (1975) 133 CLR 550; 8 ALR 173.

123. To clarify further here: the nurse's conduct merely assists PT to commit an act that may or may not be tortious, depending on what PT does (similar to supplying recording equipment that may or may not be used to breach copyright). This is in contrast to where A directs PT to commit a specific surgery (that was always going to be tortious because it had not been consented to); there, the fact that A was mistaken as to consent is irrelevant. A knowingly procured a specific tortious act. Similarly, knowledge by publishers of the content of what they are publishing may give rise to liability for defamation, even though there was no intention to defame by the author or the publisher, because, eg, they were mistaken as to the existence of a real person whose name had been used (Hulton (E) & Co v Jones[1910] AC 20 (HL)). Although each party is liable as a principal tortfeasor in this example, having themselves committed acts of publication (and leaving aside defences), one could equally argue for such an outcome by treating the author as a principal tortfeasor and the publisher (or the printer) as an accessory.

124. See above nn 15 and 27, and related text.

125. The point is illustrated by s 52, liability for misleading conduct. The maker of a misleading statement is liable even despite not being aware of the misleading nature of the statement (and even absent negligence). Interestingly, the legislative provisions imposing accessorial liability (as interpreted by the High Court in Yorke v Lucas (1985) 158 CLR 661) have opted for a narrow regime, requiring the accessories to have knowledge of the misleading nature of the conduct, even though the principals are strictly liable.

126. Analogous, however, is the liability of an occupier for adopting or continuing a nuisance created by another person: Sedliegh Denfield v O'Callaghan[1940] AC 880, in which case the defendant occupier used a pipe negligently installed on the defendant's land by another; the defendant had no knowledge of the faulty installation, but was liable when the pipe became clogged and caused a nuisance causing damage to the plaintiff. Here, it is better to conceive of the liability as a form of (strict) principal liability stemming from the defendant's status as a landowner who is using (hence ‘adopting’) the potential nuisance, rather than a form of strict accessorial liability to the tort of nuisance or negligence of the party that installed the pipe.

127. [1928] 2 KB 578.

128. Eg Smith v Leurs (1945) 70 CLR 256 (albeit no breach in that case).

129. [1932] AC 562.

130. Fleming, JG The Law of Torts (Sydney: LBC Information Services, 9th edn, 1998) p 289.Google Scholar

131. Ibid.

132. Mason v Burke (1968) 68 DLR 2d 19 concerned the question of whether a joint enterprise had been engaged in for the purpose of providing a defence to negligence. McDonald v Dalgleish (1973) 35 DLR (3d) 486 is based on the defendants' common enterprise in conducting a drag race, but the decision could equally have been decided on the basis of a breach of duty by each of the parties. More recent cases include Morin v Bonhams & Brooks Ltd[2003] EWCA Civ 1802, [2004] 1 Lloyd's Rep 702, in which the possibility of joint tortfeasorship for participation in another's negligent misstatement was alluded to, but was not addressed; and Smith v Amaca Pty Ltd & Another[2009] VSC 318 Forrest J, rejecting a statement of claim alleging accessorial liability by one manufacturer of asbestos to another manufacturer's liability in negligence, on the basis of knowledge of the latter's activities and role in the market.

133. My thanks go to the anonymous referee to alerting me to this point. An example is provided by the difficult case of Rogers v RJ Reynolds Tobacco Co 761 SW 2d 788 (Tex 1988) from the USA. That case concludes that a ‘conspiracy’ to commit negligence is actionable. The conspiracy alleged appeared to be based on participation in other parties' negligence and thus, in essence, accessorial liability. The facts are important: a number of tobacco manufacturers, and research and public relations companies established by the manufacturers, were sued on the basis of conspiracy, negligently to injure smokers, inter alia, by suppressing evidence of the dangers of smoking. It must be noted that the alleged ‘negligent’ conduct was the deliberate deception perpetrated by the defendants (misrepresentation and fraud were also alleged). This suggests accessorial liability is an appropriate analysis in cases of ‘negligence’ that are more akin to the intentional torts. (The parties knew that smoking caused illness and death and knew that, statistically, the risk was high and that hence some of the misled consumers would, as of course, suffer damage). The case is, however, also reconcilable with the view that ‘accessorial liability’ to the tort of negligence is conceptually problematic, since the court appeared to accept that a duty of care could arise (but did so within the ‘conspiracy’ rubric) in the context of the facts. Further, the breach was the failure to act honestly and carefully in warning consumers of the known dangers.