LIABILITY FOR ASSISTING TORTS.

• Date: 01 December 2017
• Author: Cooper, Henry

The boundaries of accessory liability in torts are ill defined in Australian law. Indeed, they have not been the subject of much analysis. Outside of the 'procurement' category, it remains unsettled whether liability is restricted to those engaged in a 'common design' with the primary wrongdoer, or whether liability extends to those who knowingly assist in the commission of the primary wrong. After setting out the analytical framework in Part I, this article contends in Part II that the latter is the better position. This contention is supported by an examination of the relevant authorities and academic opinion, a comparison with accessory liability in other areas of law, and an analysis of the influence of intellectual property cases. Part III suggests a framework for considering whether a defendant is liable as an accessory for knowingly assisting in the commission of a tort.

Contents I Introduction A Analytical Framework II Assistance Liability Should Be Recognised A Historical Foundations and Development B Current State of the Authorities C The Anomaly of the Position D The Influence of Intellectual Property Cases III Application of Assistance Liability A Sphere of Operation B Conduct Element C Mental Element 1 Content of Knowledge 2 Type of Knowledge 3 Degree of Knowledge D Causation IV Conclusion I INTRODUCTION

Accessory liability has been described as 'one of the last great unexplored areas of private law'. (1) This observation is particularly apt in the law of torts, where accessory liability has for the most part received haphazard attention in an eclectic range of cases, and has only recently been subjected to sustained critical analysis. (2) As Philip Sales puts it, the modern position 'is not the product of the accumulated wisdom of common law judges, lawyers and commentators consistently focused to produce analytical coherence'. (3) Nowhere is that more true than in Australian law, where the question of whether a defendant can be liable as a joint tortfeasor for assisting a primary tortfeasor remains unsettled. The aim of this study is to show that such liability should exist, and to set out an appropriate test to ensure that it operates within legitimate bounds. I begin by setting out the analytical framework within which the question arises. Then, after laying out the historical development and the current state of the authorities, I justify why assistance liability should be recognised in the law of torts. Finally, I set out the test that courts should apply when considering the liability of an accessory for assisting in the commission of a tort. (4)

A Analytical Framework

There is a multitude of ways in which a person other than the primary tortfeasor may be responsible in tort. A short exercise in locating this study within its broader context is therefore warranted. The relevant distinctions are identified in the following diagram:

This study is concerned only with accessory liability, which lies within the category of joint torts. Of the three heads within accessory liability, 'procurement' and 'common design' liability are well established. (5) Conversely, whether or not 'assistance liability' should be recognised is contentious. Procurement exists where an accessory is the instigator of the tortious conduct, and procures, counsels or induces the primary wrongdoer. (6) A common design will be found if the defendant: 'has assisted the commission of the tort by another person ... pursuant to a common design with that person ... to do an act which is, or turns out to be, tortious'. (7) For concision, I will refer to the primary wrongdoers in examples as 'PW', the accessories as 'A', and the victims as 'V'. As is clear from the above diagram, 'assistance liability' is used to refer to the type of liability where A has assisted PW, but there is no common design between them. This is synonymous with 'aiding-abetting', the nomenclature used in the American cases. (8) The term 'common design' is used where the Americans would use 'conspiracy'. (9)

It is worth justifying the differentiation between 'common design' cases and those of pure assistance. While they will overlap in many instances, they are conceptually distinct. They demand proof of different facts. For a common design, there must be proof of a tacit or express agreement; (10) for assistance liability, there must be evidence of substantial knowing assistance. (11) For Judges Wald, Bork, and Scalia: '[t]here is a qualitative difference between proving an agreement to participate in a tortious line of conduct, and proving knowing action that substantially aids tortious conduct'. (12) The failure of courts to clearly differentiate between the two creates confusion as to the proper test to apply. This has led to decisions 'made on an ad hoc basis, offering little predictive value'. (13) For example, in Shah v Gale, (14) Gale reluctantly yet mistakenly identified Shah's address as that of a man whom PW intended to 'beat up'. Tragically, when Shah answered his front door, he was brutally murdered by PW. In a civil battery and assault claim brought by Shah's relatives, Gale was held liable as an accessory on the basis that 'she agreed to assist by pointing out the address ... and, in so doing, expressly or by the clearest implication, became part of the common design'. (15) This conflates assistance and common design. If it were enough to implicitly 'agree to assist', it would be difficult to conceive of a case under the assistance head (with its stringent mental element) where a common design would not also be made out. The significance of this confusion was amplified by the fact that mere assistance was insufficient for liability under English law. (16) On that basis, it should be emphasised that the test proposed in Part III should only be applied to determine whether A is liable under the assistance head; the individual tests for procurement and common design should be applied where they are at issue. Clarity in the necessary requirements for liability in this area ensures predictability, and guards against the creeping obfuscation of the legitimate boundaries of liability under each head.

II ASSISTANCE LIABILITY SHOULD BE RECOGNISED

A Historical Foundations and Development

Glanville Williams's statement that '[t]he law relating to parties to a tort has not been so well worked out as that relating to parties to a crime' remains true today. (17) Yet the origins of accessory liability are identical across the civil-criminal divide. (18) As Sir William Holdsworth observed, this followed from the fact that certain torts were also crimes:

[Trespasses had ... their civil as well as their criminal side; and, seeing that all concerned in a trespass were equally liable to pay damages if sued by the injured party in a civil action, it was only logical to make them equally liable to punishment if prosecuted by the crown. (19) According to Pollock and Maitland, it could be said at the start of the 14th century that '[t]he law of homicide is quite wide enough to comprise ... those who have "procured, counselled, commanded or abetted" the felony'. (20) In Anglo-Saxon law it was pithily said that guilt could attach to 'the slayer by rede as well as the slayer by dede'. (21) Sir Edward Coke said that 'accessories before the fact are divided into three branches: ... commandement, force, [and] aide'. (22) In Petrie v Lamont, a civil trespass action, Tindal CJ instructed the jury that 'All persons in trespass who aid or counsel, direct, or join, are joint trespassers'. (23) That formulation, which matched the criminal position, was effectively codified into the criminal law in s 8 of the Accessories and Abettors Act 1861 (UK), which provided that all those who 'aid, abet, counsel, or procure' will be liable as accessories in criminal law. That remains the criminal position today. (24)

While accessory liability for torts and criminal law has diverged at least in England since Petrie v Lamont, it is unclear precisely when and why that divergence occurred. Two cases from 1924 illustrate this uncertainty. The Performing Right Society case concerned the liability of a concert hall operator for copyright infringements perpetrated by a band playing in the defendant's hall. McCardie J, citing Petrie v Lamont, held that the defendant would be liable if he had 'actively directed, counselled or aided' the infringement. (25)

Meanwhile, in The Koursk--which has come to be considered the leading case--the English Court of Appeal examined the position. (26) To begin with, it is worth noting that any comments about assistance liability were not necessary for the decision. V's claim stemmed from an accidental maritime collision between A and PW, which caused PW's vessel to damage and sink that of V. Thus, there was no suggestion that A 'aided' PW's wrong. Bankes LJ cited no cases on accessory liability other than Petrie v Lamont, seemingly without doubting its correctness. (27) He went on to note that Clerk and Lindsell state that 'there must be concerted actions towards a common end'. (28) But he did not intend for that to be the exhaustive test, as in his next sentence he said: 'I am not sure that the rule is here stated sufficiently widely'. (29) Scrutton LJ's judgment is often cited as excluding assistance liability, but that drastic conclusion does not follow from a fair reading of his words. In rejecting a formulation proffered by counsel, he said that Clerk and Lindsell's formulation 'is much nearer the correct view'. (30) Like Bankes LJ, he cited the statement that 'there must be concerted action to a common end'; (31) he also quoted Clerk and Lindsell for the proposition that there must be a 'common design', (32) apparently conceiving of these as two sides of the same coin. He went on to find that because the wrongful acts of A and PW were separate and unrelated acts of negligent navigation, those acts were too separate to constitute a joint tort...