Book Review: Torts, Cases and Commentary, 7th Edition

It is hard to believe that Torts Cases and Commentary has been around since 1980.

It is quite clearly intended as a student text, but given the professional pedigrees of the authors, may I suggest that it is far more than that.

It is no surprise that the National Disability Insurance Scheme receives an extensive consideration as part of the Introduction. This is a subject in which everyone should be interested. And a subject from the knowledge and study of which, everyone can gain benefit.

Whilst I try to read every page of every book that I review, sometimes, the eyes glaze over if I am not careful. Not so with this edition, although I confess that I did not re-read many of the long extracts from authorities with which I have been long familiar. To give you some idea of the size of this book, as well as the actual numbered pages, there are 80 additional pages containing the index and other references, making it one of the largest books that I have held in my hands, in some time.

It is also very detailed, as you would expect from anything carrying the name of Professor Luntz.

I don’t think that it is fair to categorise this as simply another student text for its very depth of discussion warrants serious consideration by the Torts practitioner. If nothing else, it provides a good way of revising our general knowledge of Torts law as well as a good place to start when we are faced with a difficult question.

It is probably fair to say of most of us that, having completed our University studies in Torts, we never give the nature of that topic a great deal of thought. We never actually ask ourselves, what is a tort? We never question why of two people injured at the same time, one may be entitled to compensation, whereas the other is not. Nor do we probably ever consider the apparent inequity of awards of damages in Negligence actions, where the Court has to gaze into a crystal ball and assess loss of earning capacity, or future care costs, perhaps 40 years into the future.

If we do think about this, it becomes very easy to understand the rationale behind structured settlements and legislative provisions which exist in some States which enable Future Care to be assessed on a needs basis, rather than as a lump sum. The authors provide an example where they followed the fortunes of a badly injured Plaintiff and how her mother had to sell assets in order to pay the cost of future care, given the increased cost of hiring nurses, lower than expected interest rates and the need for full time care. The total interest on the damages failed to even meet the cost of nursing care. To those of us approaching retirement, there is a lesson here, vis a vis our Superannuation in that what we receive has to last us for the rest of our lives.

Looking at this book, one is quickly reminded of and forced to think about these issues. Whilst we may have come a long way since the snail was found in the container, this text indicates that Tort law reform cannot be allowed to be static and must continue. I raise one example which is discussed, namely, “How is the administration of justice advanced by denying a remedy against a witness who maliciously testifies falsely?”¹

In my first draft of this review, I was going to commend to you the Chapter that deals with Causation. However, in retrospect I have to commend every chapter to you because there is so much to absorb that to confine oneself to one chapter would be to your disadvantage.

The earlier editions of this text were so popular as to necessitate reprints. I hope that LexisNexis have printed a large number of copies of the Seventh edition as it is sure to prove very popular both with students and practitioners.

Brian Morgan

Chambers

15 July 2013

Footnotes

1. Page 70, Text