Landmark Decision: Australian Court Recognizes Tort of Invasion of Privacy in Grosse v Purvis
Australian Courts have tended to shy away from recognising invasion of privacy as a new category of civil claim. But recently the Queensland District Court took the novel step of allowing damages for a breach of privacy in the decision of Grosse v Purvis [2003] QDC 151.
This was the first time an Australian Court recognised the existence of a common law cause of action for invasion of privacy. The Court held Purvis liable under the tort and ordered him to pay to the plaintiff damages in the sum of $178,000 plus interest and costs.
The District Court of Queensland case attracted significant publicity not only on account of the ground breaking recognition of a tort of invasion of privacy, but also Ms Grosse’s position as Mayor of the Maroochy Shire Council and the salacious evidence about her therapeutic massage business and personal relationships.
In determining that an individual had a right of privacy which if invaded gave rise to an actionable tort, Senior Judge Skoien relied on the High Court judgment in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2002) 208 CLR 199. He stated:
‘… in my view within the individual judgments certain critical propositions can be identified with sufficient clarity to found the existence of a common law cause of action for invasion of privacy. Statements of principle are to be found in those judgments which provide guidance in the formulation of such a cause of action. Academic writings are referred to which also contain statement of relevance.’
Senior Judge Skoien concluded:
‘It is a bold step to take, as it seems, the first step in this country to hold that there can be a civil action for damages based on the actionable right of an individual to privacy. But I see it as a logical and desirable step in my view there is such an actionable right.’
Basis of the right
According to the Court, there are four essential elements to a cause of action for invasion of privacy:
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a willed act by the defendant
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the act must intrude upon the privacy or seclusion of the plaintiff
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the intrusion must be in a manner which would be considered highly offensive to a reasonable person of ordinary sensibilities
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the intrusion causes the plaintiff detriment in the form of mental psychological or emotional harm or distress or prevents or hinders the plaintiff from doing an act which she is lawfully entitled to do.
His Honour noted raised the possibility that a defence to invasion of privacy could be based on public interest.
Underlying facts
Senior Judge Skoien found Mr Purvis had unlawful stalked Ms Grosse within the meaning of the Queensland Criminal Code. From early 1994 Mr Purvis developed an extraordinary infatuation with the plaintiff after a brief intimate relationship which caused him to demand he be the primary focus of Ms Grosse’s attention. Any interest which Ms Grosse took in men, even on a social basis, aroused his hostility towards her. At first he attempted only to frighten her and deter other men. Ultimately, however, circumstances allowed him to ally with political opponents of Ms Grosse and those who disapproved of her business or personal activities. On numerous occasions, both publicly and privately, he made comments to the effect that she engaged in immoral sexual acts and liaisons.
Damages
The Court determined Mr Purvis’ behaviour constituted an actionable invasion of Ms Grosse’s privacy for which she was entitled to recover damages. Senior Judge Skoien accepted that Ms Grosse was entitled to damages for post-traumatic stress disorder resulting from Mr Purvis’ behaviour, the embarrassment she suffered and enforced changes in lifestyle caused by the intrusion.
Compensatory damages of $108,000 were awarded (including $10,000 for future economic loss, $20,000 for non-post traumatic stress disorder wounded feelings and $20,000 for vindicatory damages). In recognition of the frequency and persistence of Mr Purvis’ actions (often in the presence of others), his awareness of the hurt to Ms Grosse’s dignity and belittling of it, aggravated compensatory damages of $50,000 were granted. In addition, exemplary damages of $20,000 were awarded for conscious wrong doing in contumelious disregard of Ms Grosse’s rights.
Issues for insurers
Insurers need to consider the extent to which this decision may give rise to an exposure to claims for invasion of privacy. This may arise in circumstances where a claimant is under surveillance should the claimant be able to establish that they suffered any injury as a result of any invasion of their privacy.
This decision was the subject of appeal to the Queensland Court of Appeal, however the appeal has recently been dismissed with the consent of the parties.
