Themes In The Law Of Torts
THEMES IN THE LAW OF TORTS
Justice David Ipp AO
Over the last 80 years, the law of torts has been a weathervane, blown by the winds of political, social and economic change that have swept through the western world. These movements underlie the two great themes that have pervaded the law of torts during this time.
The first and most obvious theme is the dominance of the tort of negligence. The conceptual breadth of Lord Atkin’s neighbour principle resulted in it becoming an all-conquering generalised action. Through his genius and the fluid principles he enunciated in Donoghue v Stevenson[1] the tort became infinitely adaptable and capable of applying to all forms of social and economic activities.
The second theme is the movement of the tort of negligence from a defendant-oriented position that endured until after the Second World War, to the rampant pro-plaintiff attitude that prevailed during the last quarter of the twentieth century, followed by an abrupt U-turn tending to a more balanced approach.
Donoghue v Stevenson, over time, shattered the old-established categories of negligence. Non-intentional torts were colonised. Occupier’s liability was subsumed, as was nuisance. The highway rule was abolished. The tort advanced into previously unexplored territories. In 1964, in a change of major significance, negligence reached beyond physical injury when the House of Lords held [2] that pure economic loss arising from negligent misstatement was actionable.
Since then many other novel situations have come to fall within the ambit of negligence. Claims by workers against employers have taken forms unheard of before 1960. Claims for pure mental harm arising out of a wide range of circumstances are available to a wide range of persons. A disappointed legatee can now bring an action against the solicitor for the testator [3]. Claims for wrongful birth have been recognised [4]. It has become easier to establish negligence on the part of public bodies for failure to exercise statutory powers. The concept of non-delegable duties has developed. Liability for defective products has expanded.
These advances have not come without cost to clarity and principle. The law of negligence is permeated with uncertainty. Its elements are blurred and it is often difficult to determine when duty ends and breach begins. At times, breach impinges on causation. Although foreseeability is a part of duty, scope and causation, the test for foreseeability changes, depending on the element concerned. In difficult cases, the “abracadabra of causation” [5] continues to be the despair of those who have to grapple with the concept. It is sometimes difficult to know where the onus to disentangle laid down by Watts v Rake[6] ends and the measurement of contingencies as required by Malec v J C Hutton Pty Ltd[7] begins. There is a morass of differing legislative provisions. The result for a litigant depends upon whether the claim falls under the motor accidents legislation, the workers compensation legislation, the civil liability legislation, or other statutes dealing with particular categories of plaintiffs, and in which State or Territory the litigant sues.
The swings in the pendulum that constitute the second major theme reflect the vacillations over the last 80 years between the extremes of the laissez faire individualism of early capitalism and the paternalism of socialist doctrine.
Before 1932, the law of negligence was establishment-minded. Owners of property, landlords, employers, large corporations, particularly railway companies and public bodies, had an easy time of it. Plaintiffs seldom succeeded and when they did the damages awarded to them were relatively low in today’s terms.
Donoghue v Stevenson was the harbinger of a revolution in attitude. The courts began to shift ground. Legislation introduced the doctrine of apportionment of damage and did away with the defence of contributory negligence. [8] The defence of common employment was abolished. Employers were required See Hamilton v Nuroof (WA) Pty Ltd [9] to avoid exposing employees to unnecessary risks. The special defences available to landlords, occupiers and vendors were overcome by the generalised neighbour principle. The notion that a duty of care could be owed to a careless invitee or an invitee who was aware of the dangerous condition of premises was accepted [10]. Perhaps the most significant case of all was Wyong Shire Council v Shirt[11]. Lower courts often misapplied Shirt by determining breach of duty solely in terms of its gossamer test for foreseeability. By 1980, the test for negligence bore little relationship to the moral foundation of Lord Atkin’s neighbour principle.
The difficulties for defendants increased as the concept of non-delegable duty began to find favour. In a landmark decision, the High Court held in Kondis v State Transport Authority[12] that an employer could not displace the duty to provide a safe system of work by delegating performance to an independent contractor.
The high point of the nursemaid theory of employer’s liability was McLean v Tedman [13] where the employer was held liable for failing to provide a safe system of work when one of its employee garbage collectors ran across the road without looking. The employee was even held not to be guilty of contributory negligence. The pro-plaintiff attitude affected not only liability. It applied also to damages. The great Dixon was not immune from the syndrome. A predisposition to plaintiffs is apparent from Watts v Rake[14] where the sole reason the Chief Justice gave [15] for holding that the defendant and not the plaintiff should disentangle pre-existing injuries from injuries caused by the accident was a “presumptio hominis”. Not even the use of the Latin phrase can disguise this ruling as being devoid of authority and reasoning. It was motivated solely by policy, not principle. It is a reversal of the hallowed rule of the common law that they who assert must prove. Dixon CJ’s observation was explained and watered down in Purkess v Crittenden [16] but has been used to the advantage of plaintiffs ever since.
Perhaps the greatest contribution to excessive damages awards was Griffiths v Kerkemeyer [17] where it was accepted that a plaintiff could recover damages for gratuitous services even if they did not cost the plaintiff a cent. In practice, the gratuitous services head of damage is often the largest portion of the award.
In Bennett v Minister of Community Welfare, [18] Gaudron J held [19] that once it is established that the defendant owed the plaintiff a duty of care, breached that duty, and the plaintiff suffered a foreseeable injury, the onus of disproving causation passes to the defendant. This approach represents another departure from the “they who assert must prove” rule. It has the potential significantly to expand liability for negligence. It has been applied irrespective of whether there is good reason to relieve the plaintiff of the requirement to prove factual causation. In practice, the onus of proof that is thereby shifted to the defendant will be virtually impossible to discharge. Mason P, after analysing Bennett and like authorities, has resisted this abolition of the element of causation. He has said [20] that Australian law has not adopted a formal reversal of proof of causation in negligence. Nevertheless, there are a growing number of cases where the Bennett theory has been followed.
In 1992, in Rogers v Whitaker, [21] the High Court departed from the Bolam principle [22], that being a rule that a medical practitioner is not negligent if he or she acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion. The High Court held that negligence was a matter for the court and not for medical practitioners. This ruling made it easier for plaintiffs to sue their doctors. Rogers v Whitaker also held that a medical practitioner has a duty to warn the patient of a material risk inherent in proposed treatment. Some doctors now spend more time in explaining the risks of the procedure than in examining the patient.
The pro-plaintiff approach was not confined to courts. In 1974, the most extreme pro-plaintiff legislation ever seen in this country was enacted, namely, the Trade Practices Act 1974 (Cth). Its misleading and deceptive conduct provisions created a form of strict liability entirely. This was a startling and radical negation of the long entrenched common law concept of no liability without fault. It was open to the courts to construe this legislation as impliedly requiring the proof of fault, and one brave judge did so. [23] The Federal Court, however, quickly overturned his judgment and consigned it to oblivion. [24] A sign of the times was that this extraordinary piece of social engineering occurred without protest. Consumers had become far more important than producers. The misleading conduct provisions swiftly began an imperial march of their own and soon rivalled, and to a degree overtook, the tort of negligence [25]. Section 52 became the plaintiffs’ weapon of choice, with negligence pleaded only as an alternative. Unsurprisingly, provisions of this kind have also been curtailed by tort law reform.
Generally, as Professor Atiyah remarked, P S Atiyah, [26] by the turn of the last century judges had stretched the law in favour of plaintiffs to accommodate novel claims and to lower the barriers to liability. They had, as Spigelman CJ has observed, [27] also stretched the facts in favour of plaintiffs. It was the Cole Porter era of negligence. In the words of the master: “In olden times, a glimpse of stocking was something shocking. But nowadays, goodness knows, anything goes”.
Eventually, before any legislative intervention, the tide began to turn. The stretching stopped. Courts began to show a greater orientation towards defendants. Liability of organisers of sports events was restricted severely [28]. The duty to take care to prevent harm to another from the deliberate criminal acts of a third party was recognised only in limited circumstances [29]. The High Court emphasised that no person lives in premises that are risk free and the fundamental question is whether it is reasonable to require occupiers to protect entrants from a risk of injury [30]. New South Wales v Lepore[31] held that the liability of a school authority under its non-delegable duty of care owed to pupils did not extend to intentional criminal conduct against a pupil by a teacher. CSR Limited v Eddy [32] held that Griffiths v Kerkemeyer did not extend to claims by injured plaintiffs for loss of the ability to provide gratuitous care to others. Wrongful life claims were not upheld [33].
Vairy v Wyong Shire Council [34] and Mulligan v Coffs Harbour City Council [35] indicate the difficulties that plaintiffs now face in suing public bodies for damages in diving cases. Noteably, the High Court made no reference to Tomlinson v Congleton Borough Council [36] in which the House of Lords observed that, when people chose to undertake inherently risky activities, there was “an important question of freedom at stake”, as well as moral issues of personal responsibility. The High Court did not take up these issues.
This is one of several instances of Australian tort law diverging from that of England. Another marked theme of the last 80 years is the development of a distinctive Australian law of torts.
By 2002, there was an insurance crisis. Some insurers had left Australia. Others refused to provide indemnity cover. The cover that was provided was expensive and often difficult to obtain. This state of affairs had serious consequences. Some obstetricians and neurosurgeons gave up practice, hospitals or parts of hospitals closed, local authorities were forced to close roads and swimming pools, volunteers refused to continue transporting the infirm and elderly, some social activities ceased.
In the end, government decided that the country could not afford the past years of compensation voluptuosity. Legislation was passed in the Commonwealth and every State and Territory. The uniformity of purpose, extent and rapidity of these reforms was unique.
Generally, judges and lawyers do not like legislative intervention in the common law of negligence. But such legislative intervention has occurred since the early twentieth century [37] and is an inevitable consequence of what has been described [38] as the “sovereign principle” of negligence; that is, Lord Atkin’s observation that liability for negligence is “based upon a general public sentiment of moral wrongdoing for which the offender must pay”. [39] Diplock LJ put the point in a different way when he said [40] that the law of negligence was “the application of common morality and common sense to the activities of the common man”. [41] McHugh J echoed these sentiments when saying:
“Negligence law will fall – perhaps it already has fallen – into public disrepute if it produces results that ordinary members of the public regard as unreasonable” [42].
These notions explain why legislation follows when the approach of the courts becomes far removed from community attitudes.
The legislative reforms, although differing in detail, were designed to make it more difficult for plaintiffs to succeed and to reduce the damages that courts could award. The thrust of the legislation must be regarded as expressing powerful general public sentiment. Nevertheless, the High Court has made no comment as to the weight courts should attach to the reforms, particularly when determining novel negligence claims. The inference to be drawn from the cases is, it seems, not much – if any. Tame v New South Wales was delivered at the height of the insurance crisis and while the reform process was under way. Nevertheless, the High Court extended the ambit of liability for mental harm far beyond the boundaries imposed by earlier cases (and by the House of Lords[43]) and, later, expanded the reach of liability for mental harm even further [44].
Cattanach v Melchior [45] was also decided in the midst of the reforms. The High Court held that an action lay for wrongful birth. The majority based their decision on legal principle and eschewed any reliance on policy or concepts of morality. Their approach was that, in its typical modern application, negligence is simply a complex of legal rules, devoid of moral content. A leading academic [46] described this decision “as a determined attempt to distance the court from the political arena of tort reform and reassert the supposed neutrality of ‘legal principle’”.
In parts of Australia, legislation soon reversed Tame and Cattanach. Public sentiment disapproved
.
The current position is that the courts are markedly less pro-plaintiff than in the pre-reform era. The approach is more balanced and it is difficult to discern a bias either way. Of course, that is as it should be.
On the other hand, statutory reforms have moved substantially in favour of defendants. Small claims for personal injuries are a thing of the past. Establishing liability in connection with recreational activities has become difficult. Stringent caps on damages and costs penalties make most plaintiffs think twice before suing. Public authorities are given a host of novel and powerful defences that are in conflict with the notion that the Crown and government authorities should be treated before the law in the same way as an ordinary citizen. It is difficult to accept that public sentiment will allow all these changes to remain long-term features of the law.
Since the introduction of the reforms, the insurance crisis has abated. There has been a substantial increase in the number of public liability risks written across Australia [47]. A Commonwealth government review of medical indemnity has found that doctors can now obtain affordable indemnity insurance cover. Medical indemnity rates have reduced significantly [48]. Local authorities no longer complain that insurance problems prevent them from providing essential services. The cost and difficulties of obtaining cover are no longer the subject of media comment.
It does not follow, of course, that there is general satisfaction with the tort of negligence. But this appears to be the nature of the beast. Dissatisfaction has been endemic since before Donoghue v Stevenson. Current discontent with the law of negligence is based on two factors. One is the extent of the reforms. If I may say so, the reforms of which I approve are those that the panel appointed by the various governments to review the law of negligence recommended. The reforms go much further. Certain of the statutory barriers that plaintiffs now face are inordinately high.
The second factor is the ever-present uncertainty in the law of negligence. The different statutes are confusing and many common law rules are not easy to apply. The present position appears to be that, in determining the existence of a duty of care, the totality of the relationship between the parties is decisive; considerations such as vulnerability, inequality of bargaining power, control, and reliance must be taken into account. Proximity, although out of favour, is not irrelevant. These are not easy directions to follow when attempting to arrive at the correct destination. On the face of it, the exercise looks pretty much like determining what is fair, just and reasonable.
Indeed, the House of Lords has held that “fair, just and reasonable” is part of the test for the existence of a duty of care [49]. But this test has been rejected by the High Court [50] principally on the basis that there is a danger that questions of negligence “will be reduced to a discretionary judgment” . [51]
The problem remains, however: what are the applicable norms and how is one to be weighed against the others? That is, what weight and priority does one give to each? After reading the judgments in Perre v Apand Pty Ltd, [52] the task appears to be reminiscent of that undertaken by the little red fire engine that went searching for its mother.
The modern law of negligence, from Donoghue v Stevenson and the neighbour principle onwards, has grown through policy decisions. Policy, in this context, is the application to novel situations of what is fair, just and reasonable. The courts are familiar with the test of reasonableness. After all, it is the foundation of negligence and permeates every element. In other fields of the law, the courts apply broad concepts such as reasonableness and unconscionability every day. Perhaps, in the future, the test of fair, just and reasonable will prevail. It does have persuasive advantages. It converts what is the practical, everyday test for negligence into the legal test. It does away with the uncertainties of principle that presently exist. It simplifies the law and makes it comprehensible to all.
Where, indeed, lies the future? The main challenge is to arrive at an expression of governing principles that will bring a reasonable degree of certainty, conceptual unity and clarity to the tort. The search for a pragmatic test for the existence of a duty of care will continue. Perhaps greater emphasis will be given to the moral considerations that moved Lord Atkin.
The High Court, in recent times, has clarified principles that were obscure or vague or conflicting [53]. There is a need to continue with this task and this, I think, will be a future trend.
An ongoing struggle, however, exists between the philosopher kings of policy and the black-letter lawyers who claim to propound principle alone. The essential formlessness of the tort, and the infinitely varying moral merits of the cases requiring adjudication, tend to produce judicial inconsistency. Judges metamorphose from Marcus Aurelius in one case into Baron Parke in the next. A decisive end to the conflict may not be possible. Perhaps it will be another battle of the Somme: many casualties but no resolution.
There is another important matter. The ferment in the law of negligence has caused many to re-examine the purpose underlying the tort. Whilst most lawyers regard negligence as a means of corrective or distributive justice, a growing number of judges and academics disagree. Lord Hoffmann spoke for this group when he said:[54]
“Compensation, both for financial loss and general damages, goes only to those who can prove negligence and causation. Those unable to do so are left to social security: no general damages and meagre compensation for loss of earnings. The unfairness might be more readily understandable if the successful tort plaintiffs recovered their damages from the defendants themselves but makes less sense when both social security and negligence damages come out of public funds. So any increase in general damages for personal injury awarded by courts only widens the gap between those victims who can sue and those who cannot”.
In the vast majority of cases, the guilty individual hardly ever pays the damages or even the insurance premiums. Most tort liability for personal injuries is imposed on insurers or employer corporations or public authorities. The insurers pay the damages and the corporations or authorities pay the premiums, or act as self-insurers [55]. The notion that tort law ordinarily requires negligent individuals to pay for the consequences of their negligence is simply not true.
The cost of delivering tort compensation (consistently estimated, in aggregate, as much as 40% or more of the total cost of the tort system) [56] is very high. While those who have deep-pocket defendants to sue may recover millions of dollars for momentary negligent acts, the overwhelming majority of injured persons are left to social welfare.
These matters have led some to argue for a no-fault system and the abolition of large parts of the tort of negligence. In some respects, the pressure exerted by this group has begun to bear fruit. The Legal Access Reform Group of the Commonwealth Health Minister’s Advisory Council supports the removal of long-term care costs from the tort system and their provision through a statutory administrative process. The medical profession and some leading academics strongly support the proposal. The New South Wales government has established a lifetime care and support scheme under the Motor Accidents (Life-Time Care and Support) Act 2006 (NSW). By this scheme, treatment, rehabilitation and attendant care will be provided to persons who have been severely injured in motor accidents, regardless of who was at fault. Eligibility for the scheme is to be determined by the severity of the person’s injuries. These are indications that, eventually, government will, on a no-fault basis, cover a substantial portion of the cost of harm caused by negligence.
Since Donoghue v Stevenson, and the expansion of the tort of negligence, intentional torts have gone into hibernation. As the Civil Liability Act is not applicable to intentional torts, Darwinian theory would suggest that there should be a resurgence of torts of this kind. There has already been an increase in trespass, wrongful arrest and malicious prosecution claims. This trend is likely to continue.
I now come to the Galapagos Islands Division of the law of torts, namely, defamation. The tort of defamation has evolved all on its own and has created legal forms and practices unknown anywhere else. The giant turtles of defamation have evolved their own dialect, arcane customs and overly subtle distinctions. Defamation pleadings are as complex, pedantic and technical as anything known to Dickens [57]. Interlocutory disputes continue to beset plaintiffs and there are often massive delays in getting defamation cases to trial. Damages seem out of proportion to damages awards in other categories of cases. Many of these problems are the product of legislation, and improvement will be slow until the legislation is changed.
Despite the need for the protection of privacy in modern life, New South Wales has recently abolished the need to prove public interest when establishing the defence of truth. It has thereby reversed a qualification that has existed for most of the last century and opened the way for the media to publish the most intimate details of private lives.
Some of the great legal issues of the 21st century will have to be resolved by defamation proceedings. The limits of freedom of speech are going to be tested. The law is going to be asked to balance the right to speak freely against issues of privacy, State security, and the fairness of trials. The position in defamation law of politicians and public figures will continue to be controversial. In many ways the kind of society in which we will live is going to be determined by decisions on the law of defamation. An important challenge will be to apply modern techniques of case management to defamation and to simplify the procedure and the law. There needs to be swift and cheap access to defamation trials and reliance on unnecessary technicalities should be eradicated. The law of defamation, like the law of negligence, should be readily comprehensible to ordinary people.
In future years, there is a likelihood that new torts will evolve. Obvious possibilities involve workplace harassment, and sexual, religious, racial, and other forms of discrimination. It will not be surprising to find torts based on the interference with trade or business by unlawful means. The scope of misfeasance in public office is likely to expand in scope and to become easier to establish. The progress in genetics, information technology, communications and other scientific fields will undoubtedly give rise to new forms of tort litigation. The law of torts remains strong and will continue to play a vigorous and important role in our society.**********
END NOTES
1. [1932] AC 562.
2. Hedley Byrne & Company Ltd v Heller & Partners Limited [1964] AC 465.
3. Hill v Van Erp (1997) 188 CLR 159.
4. Cattanach v Melchior (2003) 215 CLR 1.
5. J G Fleming, The Law of Torts (9th ed, 1998, Sydney: LBC Information Services) at 305.
6. (1960) 108 CLR 158 at 160 per Dixon CJ.
7. (1990) 169 CLR 638.
8. See Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9(1).
9. See Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18.
10. Commissioner for Railways (NSW) v Anderson (1961) 105 CLR 42.
11. (1980) 146 CLR 40.
12. (1984) 154 CLR 672.
13. (1984) 155 CLR 306.
14. (1960) 108 CLR 158.
15. Id at 160.
16. (1965) 114 CLR 164.
17. (1977) 139 CLR 161.
18. (1992) 176 CLR 408.
19. Id at 420 to 421.
20. See TC by his tutor Sabatino v The State of New South Wales [2001] NSWCA 380 at [59].
21. (1992) 175 CLR 479.
22. Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 at 586 per McNair J.
23. See Westham Dredging Co Pty Ltd v Woodside Petroleum Development Pty Ltd (1983) 66 FLR 14 at 29 per St John J.
24. Bevanere Pty Ltd v Lubidineuse (1985) 7 FCR 325 (Morling, Neaves and Spender JJ).
25. It was only the limiting effect of Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 that prevented s 52 from swamping the entire law of negligently caused personal injuries.
26. P S Atiyah, The Damages Lottery (1997, Oxford: Hart Publishing), chapters 2 and 3.
27. See J J Spigelman, ‘Negligence: Is recovery for personal injury too generous?’ (2006) 14 Tort L Rev 5 at 9.
28. See Agar v Hyde (2000) 201 CLR 552 and Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460.
29. Modbury Triangle Shopping Centre Pty Limited v Anzil (2000) 205 CLR 254.
30. (2005) 80 ALJR 341.
31. Neindorf v Junkovic (2003) 212 CLR 511.
32. (2005) 80 ALJR 59.
33. Harriton v Stephens (2006) 226 ALR 391; (2006) 80 ALJR 791.
34. (2005) 223 CLR 422.
35. (2005) 223 CLR 486.
36. [2004] 1 AC 46 at 84.
37. For example, the workers compensation statutes.
38. Overseas Tankships (UK) v Morts Dock & Engineering Co (The Wagon Mound [No 1] [1961] AC 388.
39. Id at 426.
40. In Doughty v Turner Manufacturing Company Limited [1964] 1 QB 518.
41. Id at 531.
42. See Tame v New South Wales (2002) 211 CLR 317 at 354.
43. Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310; White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.
44. Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269.
45. (2003) 215 CLR 1.
46. See P Cane, ‘Reforming Tort Law in Australia: A Personal Prospective’ (2003) 27 MULR 649 at 671, footnote 81.
47. See Australian Prudential Regulation Authority, National Claims and Policies Database (available at http://www.ncpd.apra.gov.au/Home/Home.aspx).
48. The Hon Tony Abbott MP, Minister for Health and Ageing, Media Release: ‘Medical Indemnity: more affordable, more secure’ (22 February 2007).
49. See Caparo Industries Plc v Dickman [1990] 2 AC 605 at 618 per Lord Bridge of Harwich.
50. See Sullivan v Moody (2001) 207 CLR 562; cf Kirby J in Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540.
51. Sullivan v Moody (2001) 207 CLR 562 at 579 per Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ.
52. (1999) 198 CLR 180.
53. See for example Leichhardt Municipal Council v Montgomery [2007] HCA 6
54. See The Gleaner Company Ltd v Abrahams [2004] 1 AC 628 at 646.
55. P S Atiyah, “Personal Injuries in the Twenty-First Century: Thinking the Unthinkable” in Peter Birks (ed), Wrongs and Remedies in the Twenty-First Century (1996, Oxford: Clarendon Press) at 13.
56. See P Cane, Atiyah’s Accidents, Compensation and the Law (6th ed, 1999, London: Butterworths) at 338-339.
See Burrows v Knightley (1987) 10 NSWLR 651 at 654 per Hunt J.
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