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Davis, Jim --- "The Laws of Man Over Vehicles Unmanned" [2012] JlLawInfoSci 10; (2012) 21(2) Journal of Law, Information and Science 166

The (Common) Laws of Man Over Vehicles Unmanned



My commentary is restricted to two issues raised in the précis article: (a) what response might the law make to autonomous or semi-autonomous unmanned ground vehicles (UGVs) on public roads; and (b) whether the use of unmanned vehicles, and especially the use of unmanned aerial vehicles (UAVs), will require the laws protecting privacy to be reviewed. A further limit on my commentary is that I can speak with any confidence only on the current law in Australia and New Zealand. I comment on the possible effect of the advent of unmanned vehicles on the law in England, Canada and the United States, but beyond those countries, I regret that my knowledge is insufficient to make any meaningful commentary.

1 UGVs on Public Roads

I agree entirely with the general comment in the précis article, at 124, that ‘the common law is not incapable of dealing with new technologies’, but I fear that I must disagree with the assumption which may be drawn from that comment, that the tort of negligence will be able to deal effectively with the advent of UGVs on public roads. In my view, the only circumstance in which a UGV might to be allowed on a public road, at least in Australia or New Zealand, is on condition that (a) the operator of the vehicle is to be held strictly liable for any loss or damage caused by it, and (b) the operator has satisfied the regulatory authorities that it would be able to provide adequate compensation for anyone injured by that operation.

Let me justify this conclusion by reference, first, to the limitations imposed by Parliaments around the English-speaking world on the field of operation of the law of negligence, in an effort to provide effective compensation to victims of road trauma, and secondly to analogies that may be drawn with common law principles.

1.1 Negligence and the effective compensation of victims of road trauma

Legal scholars have long been all too well aware that the law of negligence is far from perfect as a means of providing effective compensation to victims of road trauma. Among the defects of the law are:

• the need to prove fault, sometimes in relation to a collision which occurred in a fraction of a second;

• the fact that compensation is paid as a lump sum to cover both past and future losses, leading Lord Scarman to comment: ‘Knowledge of the future being denied to mankind, so much of [an] award as is to be attributed to future loss and suffering ... will almost surely be wrong.’[1]

• the fact that in most cases the amount of compensation is arrived at by settlement between the parties, which is likely to be to the disadvantage of the injured party because of the relatively weak bargaining position that any victim of road trauma suffers from;

• the delay in arriving at a conclusion of a dispute; and

• the costs of engaging in litigation.[2]

These defects have led legislatures in New Zealand and Australia to enact schemes for the automatic compensation of the victims of road (and other) trauma, in most instances providing a statutorily determined level of compensation, payment of which is determined by the fact of an injury (and its severity), and with no reference to the cause of that injury. Under the schemes in New Zealand and the Northern Territory, the injured party is denied the right to bring civil proceedings for compensation.

1.2 No-fault Compensation Schemes in New Zealand and Australia

The most comprehensive of such no-fault compensation schemes is the Accident Compensation Act 2001 (NZ). The legislation provides for the payment of medical, hospital and other similar treatment to anyone who suffers personal injury by accident in New Zealand, while residents in that country receive 80% of their pre-accident taxable income (subject to relatively generous upper and lower limits) for so long as they are incapacitated from employment. The legislation abolishes the right to sue at common law in respect of any personal injury for which it provides compensation.[3] The scheme is administered by the Accident Compensation Corporation, and the benefits payable to the victims of road accidents are funded, in general terms, from levies payable by the owners of motor vehicles.[4] I assume that if anyone were to seek permission to operate a UGV on the roads in New Zealand, the Accident Compensation Corporation would assess the chances of the vehicle causing personal injury, and require the operator to pay a fee based on the likely costs involved.

The only jurisdiction in Australia to have a similar scheme, under which the statutory entitlements to compensation for road injuries are in substitution for any rights at common law, is the Northern Territory. Under the Motor Accidents (Compensation) Act 1979 (NT), anyone who is injured or dies as a result of a motor accident that occurred in the Territory, or a resident of the Territory whose injury or death (wherever in Australia it occurred) arose out of the use of a motor vehicle registered there, is entitled to recover the benefits provided for in the Act. The principal benefits are compensation for any loss of earning capacity, up to a maximum of 85% of the average weekly earnings of wage-earners in the Territory,[5] plus the cost of medical and rehabilitation expenses incurred as a result of the accident.[6] The scheme is administered by the Territory Insurance Office, and presumably if the operator of a UGV were to seek to register the vehicle under the Motor Vehicles Act 1949 (NT) that Office would have to determine a registration fee that would cover the risk of the vehicle causing injury or death.

Victoria and Tasmania also have statutory schemes for the compensation of the victims of road trauma. The Transport Accidents Act 1986 (Vic) provides for the payment by the Transport Accident Commission of up to 80% of the pre-accident earnings of anyone injured in a road accident in Victoria, or of anyone injured elsewhere in Australia who is either a resident of that State or the driver of or passenger in a vehicle registered there.[7] Such a victim is also entitled to recover benefits for any impairment of bodily function,[8] and if such a victim dies, the dependents are entitled to a death benefit and weekly payments for a limited time.[9] The scheme is subject to some exclusions, and is in addition to the victim’s rights at common law, so long as the Transport Accident Commission has assessed the injuries as serious.[10] It is assumed that if a person sought to register a UGV for use on the roads in Victoria, the Transport Accident Commission would need to assess the risk of injury likely to arise from use of the vehicle, and charge a registration fee accordingly.

The Motor Accidents (Liabilities and Compensation) Act 1973 (Tas) provides rather more limited benefits, generally in respect of road accidents occurring in Tasmania, or involving a motor vehicle registered there.[11] The benefits include a disability allowance, death and funeral benefits and the payment of hospital and medical expenses incurred as a result of the accident.[12] The scheme is in addition to any claim an injured person may have at common law, subject, of course, to the need to bring the statutory benefits into account in the assessment of damages.[13] The scheme is administered by the Motor Accidents Insurance Board. As with the schemes already mentioned, it is presumed that if one sought to register a UGV for use on the roads in Tasmania that Board would assess a registration fee that was intended to cover the Board’s likely exposure to risk.

The only other statutory scheme in Australia for the compensation of victims of road trauma is that in New South Wales, the benefits of which are available only to those suffering severe injuries[14] as a result of a motor accident which occurred in that State.[15] Those benefits are available solely by reason of the fact of the injury having been suffered, and regardless of the fault of anyone involved in the accident.[16] The benefits include such treatment, rehabilitation and care as is necessary, the need for which is assessed on a regular basis by the Lifetime Care and Support Authority. It is presumed that if one sought to register a UGV for use on the roads in New South Wales, that Authority would assess the risk of injury likely to arise therefrom, and charge accordingly.

A final comment on legislation in Australia providing no-fault compensation for road (and other) trauma is that in February 2011 the Productivity Commission handed down a Draft Report on Disability Care and Support, one aspect of which is a proposal for no-fault compensation for catastrophic injuries suffered as a result of accidents. Draft Recommendation 16.1 is:

State and territory governments should establish a national framework in which state and territory schemes would operate – the National Injury Insurance Scheme. The NIIS would provide fully-funded care and support for all catastrophic injuries on a no-fault basis. The scheme would cover catastrophic injuries from motor vehicle, medical, criminal and general accidents. Common law rights to sue for long-term care and support should be removed.[17]

The Report goes on to propose (in draft Recommendation 16.5) that a scheme covering catastrophic injuries arising from motor vehicle and medical accidents should be in place by 2013, and other forms of catastrophic injury should be covered by at least 2015.

1.3 No-fault compensation schemes in North America

Starting with the Canadian Province of Saskatchewan, many of the Canadian Provinces, and at least eight of the States in the United States, have legislative schemes similar to that currently operating in Tasmania, in that they provide for compulsory first-party insurance for the victims of road trauma in the various jurisdictions, but only as a source of compensation supplementary to common law rights.[18]

1.4 Common law analogies

For those jurisdictions in Australia or North America in which common law rights to sue for injuries suffered on the road have not been abolished, it is suggested that, in the case of an accident resulting from the use of a UGV, a court would be likely to impose strict liability, rather than merely a duty to take care, on the operator of the UGV. It is further suggested that such an imposition of strict liability follows a clear common law tradition.

A UGV, whether autonomous or semi-autonomous, may properly be regarded as dangerous, as robotics have not yet advanced to such a state that one could confidently accept that an autonomous UGV would act in the same way as the reasonable person of the law of torts. And if it is accepted that a UGV is dangerous, it is but a short step to draw an analogy with the liability at common law of the owner or keeper of an animal that is either known or presumed to be dangerous to mankind. Such liability is strict, in that the care taken (or not taken) by the owner to keep the animal from doing harm is irrelevant. Once the harm is shown to have been caused by the animal, the only defence open to the owner or keeper is that the plaintiff voluntarily assumed the risk of that injury by his or her actions.[19] It may be accepted that this strict liability has been abolished by statute in New South Wales, South Australia and the Australian Capital Territory,[20] where the owners and keepers of all animals other than dogs are liable only if they are negligent in the control of their animal, but even in those jurisdictions, strict liability is statutorily imposed on the keeper of a dog, for the very reason that dogs ‘not only have the size and strength to inflict serious bodily injury, but also are generally privileged to roam freely.’[21] A UGV, it may be argued, is very much more capable of inflicting serious bodily injury than a dog, and hence its use on public roads must render its operator subject to a like strict duty.

A further analogy between the use of UGVs and the approach of the common law to dangerous activities relates to an aspect of vicarious liability. It is generally the case that an employer will be vicariously liable for another’s negligence only when the person who has caused the harm for which the plaintiff seeks recompense is an employee, and has acted in the course of employment. However, there is a heterogeneous collection of cases in which an employer will be vicariously liable for the negligence of one who is not an employee, but an independent contractor. One such circumstance is that in which an employer is engaged in the dangerous use of land which is likely to detrimentally affect people or property in the near vicinity. In such a case, the High Court of Australia held, in Burnie Port Authority v General Jones Pty Ltd,[22] the employer will be vicariously liable, despite having taken all reasonable care, if an independent contractor, over whose actions the employer has no direct control, is negligent in causing harm to those nearby. An autonomous UGV may be likened to an independent contractor in that the operator of the UGV has no direct control over its actions while it is in operation. Once the operator sets the UGV in motion, it is not unreasonable to regard it as being engaged in the dangerous use of the roadway and, by analogy with the Burnie Port Authority case, strictly liable for any injury caused to others.

2 Privacy

The précis article assumes, at 127, that the law will protect an individual’s privacy only in those circumstances in which he or she has a reasonable expectation of privacy – that is, when the person assumes that they are not being subjected to surveillance or the recording of their activities by other members of the community. The précis article goes on to point out, at 128-9, that UAVs are becoming more and more sophisticated, with an increasing power to capture images of the conduct of members of the public wherever they may be found, subject only to the limitation that a person is not surrounded by an opaque structure. This latter view leads Gogarty and Hagger to assert that, as surveillance technology ‘becomes more available and less expensive, the reasonable expectation argument will become even harder to maintain.’[23]

While I agree with the initial premise, that privacy is protected only when the subject of the intrusion has a reasonable expectation of privacy, I differ from the conclusion drawn therefrom, that such an expectation of privacy is becoming harder to maintain. It is my contention that the reasonable expectation of privacy arises not from the fact that the subject of the intrusion had no reason to suspect that he or she was being covertly watched, but from the fact that the conduct of the subject of the intrusion is such that a reasonable person would be highly offended if that conduct were published to the world at large. I seek to support this contention from a review of the current and proposed forms of protection provided around the English-speaking world.

2.1 The tort of invasion of privacy in the United States

In the English speaking world, only the United States has developed a tort of invasion of privacy solely by judicial decision. The courts started their development of the tort in the latter years of the nineteenth century, following the famous article by Warren and Brandeis[24] which synthesised mainly English decisions on the torts of defamation, nuisance and trespass. The tort now finds expression in §§ 652A – 652E of the Second Restatement,[25] although for present purposes only §§ 652A, 652B and 652D are relevant to invasions of privacy by UAVs. They provide:

652A. General Principle

(1) One who invades the right of privacy of another is subject to liability for the resulting harm to the interests of the other.

(2) The right of privacy is invaded by:

(a) unreasonable intrusion upon the seclusion of another, as stated in 652B; or

(b) appropriation of the other’s name or likeness, as stated in 652C; or

(c) unreasonable publicity given to the other’s private life, as stated in 652D; or

(d) publicity that unreasonably places the other in a false light before the public, as stated in 652E.

652B. Intrusion upon Seclusion

One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

652D. Publicity Given to Private Life

One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that

(a) would be highly offensive to a reasonable person, and

(b) is not of legitimate concern to the public.

It is suggested that these principles would provide protection to a person who has been subject to surveillance by UAVs if that surveillance included the recording and publishing of conduct which, while perfectly lawful, was of a private nature such that it would be highly offensive to a reasonable person for that information to be widely dispersed.

2.2 The statutory tort of violation of privacy in Canada

British Columbia,[26] Manitoba,[27] Newfoundland and Labrador[28] and Saskatchewan[29] have created tort liability by statute for the violation of a person’s privacy. Liability is imposed in very general terms, in that, in three of the Provinces, the relevant statute states: ‘It is a tort, actionable without proof of damage, for a person, wilfully and without a claim of right, to violate the privacy of another.’ [30]

In Manitoba, the difference in wording indicates no intention to differ in meaning. The relevant provision is:

2(1) A person who substantially, unreasonably and without claim of right, violates the privacy of another person commits a tort against that person.

2(2) An action for violation of privacy may be brought without proof of damage.

The legislation in three of the Provinces goes on to provide some particularity to the tort by giving examples of its commission. It is noteworthy that each statute lists as an example of a violation of privacy,

surveillance, auditory or visual, whether or not accomplished by trespass, of that person, his home or other place of residence, or of any vehicle, by any means including eavesdropping, watching, spying, besetting or following.[31]

British Columbia has the same idea in slightly different words, s 1(4) of its Privacy Act providing that ‘privacy may be violated by eavesdropping or surveillance, whether or not accomplished by trespass.’

Although this legislation was first introduced into Canada by the British Columbia legislature in 1968,[32] there has been remarkably little litigation on it in any of the four Provinces. One of the matters to emerge from an analysis of that litigation is that the courts take a wide range of factors into account in determining whether there has been a violation of the plaintiff’s privacy, and that the plaintiff’s possible expectation of privacy is not an absolute, but is weighed against the defendant’s conduct. Thus, in Silber v BCTV Ltd,[33] video footage of the plaintiff, who was engaged in an industrial dispute, that was taken while the plaintiff was in a public car-park, was held not to be a violation of his privacy. Although the car-park was privately owned, it was open to the public, and the plaintiff was well aware that a TV crew were filming, and the conduct of the TV crew was regarded as fulfilling a public duty of informing the public.

On the other hand, in Watts v Klaemt,[34] the parties, who were neighbours, had been engaged in an acrimonious dispute for some time. In reprisal for some imagined wrong of the plaintiff, the defendant used a scanner to eavesdrop on, and record, the plaintiff’s telephone calls which she made, in her home, on a cordless telephone. The Judge accepted that, in light of the age of the telephone that the plaintiff used, she ought to have realised that calls could be intercepted by relatively inexpensive equipment, but that, as she had made the calls in the privacy of her own home rather than in a public call box, she had a reasonable expectation of privacy. Furthermore, the defendant had no claim of right to intercept and record the calls, and his conduct was regarded as sufficiently reprehensible to warrant a finding that he had violated the plaintiff’s privacy. Similarly, in Milner v Manufacturers Life Insurance Co,[35] the first plaintiff, Mrs Milner, had claimed a disability pension from the defendant, which arranged for a private investigator to film her from the street, while she was in her home, or in her front garden. The particular episode of filming of which Mrs Milner complained had taken place after dark, when she was inside her house, but had the blinds up and lights on inside. In those circumstances her expectation of privacy was held to be low, and the private investigator had done nothing more than he was employed to do. However, on the same occasion, Mrs Milner’s daughter (the second plaintiff) was also inside the house, trying on a costume. The private investigator’s continued filming caught the daughter without a shirt on. Malnick J considered that the daughter’s privacy had been violated thereby. He considered that, as the daughter was not the subject of any investigation by the defendant, and as she had no reason to know of the possibility of the investigator outside, her expectation of privacy was relatively high. Furthermore, the investigator had no claim of right with respect to the daughter, and must have known that his conduct would be offensive to her.

2.3 The judicial development of a right of privacy in New Zealand

Starting in the 1990s with Bradley v Wingnut Films Ltd[36] and P v D,[37] the courts in New Zealand are in the process of developing an independent tort based on the wrongful publication of private information. That development has continued over the last decade. In Hosking v Runting,[38] a television personality complained about the publication in a newspaper of a photograph of his child taken in a public street (and with the knowledge of the plaintiff). The Court of Appeal rejected the claim, pointing out that the two fundamental requirements for the tort were the existence of facts in respect of which there was a reasonable expectation of privacy, and publicity given to those private facts which would be considered highly offensive to an objective reasonable observer. Since the photograph in question had been taken on a public street, the first of those requirements had not been met.

More recently, in Television New Zealand Ltd v Rogers,[39] the Supreme Court of New Zealand did not necessarily agree with all of the comments made in earlier cases, but nevertheless rejected an appeal by Rogers, who had failed to persuade the lower courts that the publication of the video recording of his being interviewed by the Police after he had been charged with murder, was within the bounds of this tort. The members of the Supreme Court were of the view that such a video recording was not one in which the subject could have a reasonable expectation of privacy.

With regard to possible commission of this tort by surveillance by UARs, one might suppose that, so long as the conduct which has been recorded and published is such as could be regarded by a reasonable person as private, the intrusion by the UAR would fall within the parameters of this tort.

2.4 The judicial development of protection of privacy in England

Although the House of Lords held, in Wainwright v Home Office,[40] that there was, at that time, ‘no over-arching, all-embracing cause of action for “invasion of privacy”’,[41] the same tribunal held, only a few months later, in Campbell v MGN Ltd,[42] that the well-established action for breach of confidence could be developed to protect against the disclosure of private information.[43] In general terms, the House of Lords held that:

• the duty of confidence would arise whenever the person who came under the duty was in a situation where he or she knew or ought to know that the other person could reasonably expect his or her privacy to be protected; and

• that reasonable expectation of the subject was to be assessed by asking whether the publication of the information would be highly offensive to a reasonable person of ordinary sensibilities placed in the same position as the subject of the disclosure.[44]

On the facts of the Campbell case, it was held that the plaintiff was entitled to an award of damages for breach of confidentiality. The defendant, the publisher of the Daily Mirror newspaper, had published both an article and a photograph of Naomi Campbell, an internationally known fashion model, emerging from a meeting of Narcotics Anonymous. A majority of the House of Lords considered that the details of the plaintiff’s treatment for drug addiction were akin to private medical records, and therefore imposed a duty of confidence on the newspaper, and that, in view of the assurance of anonymity and confidentiality given by Narcotics Anonymous, a reasonable person in Miss Campbell’s position would find the publication highly offensive.

In terms of possible infringements of privacy by UARs, two points may be made about the Campbell case. On the one hand, the fact that the photograph was taken covertly was not, by itself, determinative. If, as Baroness Hale commented, the photograph had been taken ‘when she pops out to the shops for a bottle of milk’,[45] no one could have complained. It is the activity photographed which must be private. Hence, on the other hand, even though Miss Campbell could presumably expect free-lance photographers to dog her every step in the hope of catching a newsworthy shot, she could still reasonably expect her privacy to be protected in the circumstances before the Court. In Hellewell v Chief Constable of Derbyshire,[46] Laws J had earlier made the same point, when he said:

If some-one with a telephoto lens were to take from a distance and with no authority a picture of another engaged in some private act his subsequent disclosure of the photograph would, in my judgment as surely amount to a breach of confidence as if he had found or stolen a letter or diary in which the act was recounted and proceeded to publish it.[47]

Similarly, in Mosley v News Group Newspapers Ltd,[48] Eady J awarded Max Mosley, head of the Formula 1 international racing car federation and son of fascist and Nazi-sympathiser Sir Oswald Mosley, ₤60,000 damages for mental distress arising from the publication of video footage of private sexual orgies in which he had indulged. Although there were at least five other people involved in the activities which had been filmed, his family and associates had no idea that they had taken place, and the information was consequently regarded as private for these purposes.

2.5 Protection of privacy in Australia

In Australian Broadcasting Corp v Lenah Games Meats Pty Ltd,[49] the High Court was prepared to accept that, in due course, the common law of Australia might develop the means for protecting privacy,[50] but on the facts of that case, the Court refused to extend any such protection to a company.

Since then, the only superior court to consider the issue has been the Court of Appeal in Victoria, in Giller v Procopets,[51] in which the court upheld the appellant’s claim for damages for breach of confidence based on the respondent’s showing (or threatening to show) to others videotapes of sexual activity between the parties, many of which had been taken with her consent.

However, in 2008 the Australian Law Reform Commission produced a Report, For Your Information: Australian Privacy Law and Practice,[52] which, while concerned largely with the operation of the Privacy Act 1988 (Cth), also proposed the introduction of a statutory cause of action for a serious invasion of privacy. The terms of its recommendations are:

Recommendation 74–1 Federal legislation should provide for a statutory cause of action for a serious invasion of privacy. The Act should contain a non-exhaustive list of the types of invasion that fall within the cause of action. For example, a serious invasion of privacy may occur where:

(a) there has been an interference with an individual’s home or family life;

(b) an individual has been subjected to unauthorised surveillance;

(c) an individual’s correspondence or private written, oral or electronic communication has been interfered with, misused or disclosed; or

(d) sensitive facts relating to an individual’s private life have been disclosed.

Recommendation 74–2 Federal legislation should provide that, for the purpose of establishing liability under the statutory cause of action for invasion of privacy, a claimant must show that in the circumstances:

(a) there is a reasonable expectation of privacy; and

(b) the act or conduct complained of is highly offensive to a reasonable person of ordinary sensibilities.

In determining whether an individual’s privacy has been invaded for the purpose of establishing the cause of action, the court must take into account whether the public interest in maintaining the claimant’s privacy outweighs other matters of public interest (including the interest of the public to be informed about matters of public concern and the public interest in allowing freedom of expression).

Recommendation 74–3 Federal legislation should provide that an action for a serious invasion of privacy:

(a) may only be brought by natural persons;

(b) is actionable without proof of damage; and

(c) is restricted to intentional or reckless acts on the part of the respondent.

Recommendation 74–4 The range of defences to the statutory cause of action for a serious invasion of privacy provided for in federal legislation should be listed exhaustively. The defences should include that the:

(a) act or conduct was incidental to the exercise of a lawful right of defence of person or property;

(b) act or conduct was required or authorised by or under law; or

(c) publication of the information was, under the law of defamation, privileged.

Recommendation 74–5 To address a serious invasion of privacy, the court should be empowered to choose the remedy that is most appropriate in the circumstances, free from the jurisdictional constraints that may apply to that remedy in the general law. For example, the court should be empowered to grant any one or more of the following:

(a) damages, including aggravated damages, but not exemplary damages;

(b) an account of profits;

(c) an injunction;

(d) an order requiring the respondent to apologise to the claimant;

(e) a correction order;

(f) an order for the delivery up and destruction of material; and

(g) a declaration.

The recommendations have not yet been accepted by the federal government. It is suggested that if they are accepted, anyone who is subject to surveillance by UAVs and whose private conduct is subsequently made known, would have good grounds for claiming damages under such a statutory right of action.


I suggest that the means by which privacy is protected around the English-speaking world, both presently and prospectively, are sufficiently flexible to be able to continue to provide the same protection, whatever new means might be devised that would enable a greater number of people to carry out covert surveillance on their fellows.

[1] Lim v Camden Area Health Authority [1979] UKHL 1; [1980] AC 174, 183.

[2] All of these factors, and more, are fully discussed in Luntz, Hambly, Burns, Dietrich and Foster, Torts, Cases and Commentary (LexisNexis, 6th ed, 2009) [1.2.1]-[1.2.30]; see also Balkin and Davis, Law of Torts (Butterworths, 4th ed, 2009) [1.14]; Sappideen and Vines (eds), Fleming’s Law of Torts (Lawbook Co, 10th ed 2011) [20.80].

[3] Accident Compensation Act 2001 (NZ) s 317.

[4] For a more detailed explanation of the scheme, see Balkin and Davis, above n 2, [12.42]-[12.49].

[5] Motor Accidents (Compensation) Act 1979 (NT) s 13.

[6] Ibid s 18. For further details of the legislation, see Balkin and Davis, above n 2, [12.34]-[12.37].

[7] Transport Accidents Act 1986 (Vic) s 35.

[8] Ibid s 47.

[9] Ibid ss 57-59.

[10] Ibid s 93(2). For further details of the legislation, see Balkin and Davis, above n 2, [12.21]-[12.26].

[11] Motor Accidents (Liabilities and Compensation) Act 1973 (Tas) s 23.

[12] For details of the benefits, see Balkin and Davis, above n 2, [12.28]-[12.32].

[13] Motor Accidents (Liabilities and Compensation) Act 1973 (Tas) s 27.

[14] See Motor Accidents (Lifetime Care and Support) Act 2006 (NSW) s 7, under which eligibility to be a participant in the Scheme set up by that Act is to be determined by the Lifetime Care and Support Authority, pursuant to Guidelines issued by it.

[15] Ibid s 4(2).

[16] Ibid s 4(4).

[17] Australian Government Productivity Commission, Disability Care and Support – Productivity Commission Draft Report Volume 2, (Commonwealth of Australia, 2011) 16.38.

[18] Fleming, above n 2, [20.95].

[19] See Balkin and Davis, above n 2, [15.11]-[15.18].

[20] Animals Act 1977 (NSW); Civil Liability Act 1936 (SA) Pt 3; Civil Liability (Wrongs) Act 2002 (ACT) ss 212-215.

[21] Balkin and Davis, above n 2, [15.20], referring to the New South Wales Law Reform Commission, Report on Civil Liability for Dogs, Report No 8 (1970).

[22] (1994) 170 CLR 520; see further Balkin and Davis, above n 2, [26.31].

[23] Précis article, 129.

[24] ‘Right to Privacy’ (1890) 4 Harvard Law Review 194.

[25] American Law Institute, Restatement (Second) of Torts (1997).

[26] Privacy Act, RSBC 1996, Chap 373.

[27] Privacy Act, CCSM, c P125.

[28] Privacy Act, RSNL 1990, Chap P-22.

[29] Privacy Act, RSS 1978, c P-24.

[30] BC s 1(1); NL s 3(1); Sask s 2.

[31] Manitoba s 3(a); Newfoundland s 4(a); Saskatchewan s 3(a).

[32] See Peter Burns, ‘The Law and Privacy: The Canadian Experience’ (1976) 54 Canadian Bar Review 1, 31.

[33] [1986] 2 WWR 609 (BC SC).

[34] 2007 BCSC 662.

[35] 2005 BCSC 1661.

[36] [1993] 1 NZLR 415.

[37] [2000] 2 NZLR 591.

[38] [2004] NZCA 34; [2005] 1 NZLR 1

[39] [2007] NZSC 91; [2008] 2 NZLR 277.

[40] [2004] 1 AC 406.

[41] See Campbell v MGN Ltd [2004] UKHL 22; [2004] 2 AC 457, [11] (Lord Nicholls).

[42] [2004] UKHL 22; [2004] 2 AC 457.

[43] Part of the impetus for this development was the enactment of the Human Rights Act 1998 (UK), especially Art 8, which protects the right to respect for private life, and Art 10, which protects the right to freedom of expression.

[44] See generally [2004] UKHL 22; [2004] 2 AC 457, [21]-[22] (Lord Nicholls).

[45] Ibid [154].

[46] [1995] 1 WLR 804, 807 (emphasis supplied).

[47] This comment was subsequently quoted with approval by Gleeson CJ in Australian Broadcasting Corp v Lenah Games Meats Pty Ltd (2001) 208 CLR 199, [34].

[48] [2008] EWHC 1777 (QB).

[49] (2001) 208 CLR 199.

[50] Ibid [40]-[43] (Gleeson CJ), [107]-[110] (Gummow and Hayne JJ), [335] (Callinan J).

[51] [2008] VSCA 236; (2008) 24 VR 1.

[52] ALRC 108.

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