LIABILITY FOR ASSISTING TORTS

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.