Negligence: The Last Outpost of the Welfare State
ADDRESS BY THE HONOURABLE J J SPIGELMAN AC
CHIEF JUSTICE OF NEW SOUTH WALES
THE JUDICIAL CONFERENCE OF AUSTRALIA: COLLOQUIUM 2002
LAUNCESTON, 27 APRIL 2002 NEGLIGENCE: THE LAST OUTPOST OF THE WELFARE STATE
I had occasion to observe last year that in many respects the tort of negligence is the last outpost of the welfare state [1]. This observation prompted the following comment by Professor Harold Luntz, in the preface to the fourth edition of his text on damages [2]:
"No welfare state would ever have created a system so irrational, expensive, wasteful, slow and discriminatory."
Professor Luntz, himself long an advocate of a system of community responsibility for accidents of the character in existence in New Zealand, expresses a view as to the practical operation of the tort of negligence that is shared by a substantial number of significant community decision makers.
Public debate about tort law reform has perhaps never been as intensive as it is at the moment. It is a debate to which the judiciary collectively has much to contribute. The purpose of this paper is to make, but more importantly to entice, such a contribution. There are many serving judges who have a very good understanding of the development of the law of negligence over the last two or three decades. Many of you know from your experiences as advocates in crucial turning point cases, or as dissentients, how the law developed in the way it has and what the road not taken was. Many who are presently involved in formulating reform proposals do not have such an understanding. This is because virtually no one reads dissenting judgments or overruled cases.
In discussing the issue of tort law reform I am reminded of the blistering attack on reformers by Senator Roscoe Conkling, a Republican machine party boss in New York City, who said in 1880:
"Some of these worthies masquerade as reformers. Their vocation and ministry is to lament the sins of other people. Their stock in trade is rancid, canting, self-righteousness ... Their real object is office and plunder. When Dr Johnson defined patriotism as the last refuge of a scoundrel, he was unconscious of the then undeveloped possibilities of the word 'reform'." [3]
Plainly, the New Zealand type of non-fault scheme is the quintessential product of the welfare state. My characterisation of the fault based tort of negligence as the last outpost of the welfare state may appear somewhat anomalous. My observation is based on the practical operation of the law of negligence in our courts.
The idea that governments are in some way responsible for caring for all citizens - as it was put, "from cradle to grave" - contains a strong element of paternalism that has now been rejected in most advanced industrial countries as the basis of government intervention to attain social policy objectives. An element of welfare state paternalism, driven by the same sense of compassion, is not absent from day to day judicial decision making about when a person ought to receive compensation, even in our fault based system.
There are many undefined elements leading to a final award of damages and this permits expansion of liability and damages: What risk is foreseeable? What damage is remote? What does "commonsense" suggest is the cause? When is a contribution to the creation of a risk "material"? Should a limitation period be extended? Should the plaintiff's medical evidence - even if idiosyncratic - be accepted? Should the plaintiff be believed about the effect of a hypothetical warning? etc etc. There is much flexibility in the outcome of negligence litigation.
A second characteristic of the welfare state was the way it encouraged individuals to hold others responsible for looking after them and protecting them from the consequences of their own conduct. The practical operation of the tort of negligence sometimes gives inadequate weight to the conduct of the plaintiff. There has been a significant change over recent decades in expectations within Australian society about persons accepting responsibility for their own actions. This change is already being reflected in judicial decision making, a process that is not complete, but which may very well be reinforced by legislative intervention. Again I believe that the judiciary has a capacity to collectively contribute to the debate as to the desirability and content of such intervention.
The Trend of Judicial Decisions
Over a few decades - roughly from the sixties to the nineties - the circumstances in which negligence would be found to have occurred and the scope of damages recoverable if such a finding were made, appeared to expand considerably. Professor Atiyah referred to this long term historical trend as "stretching the law" [4]. There may be an equivalent parallel trend, perhaps of even greater practical significance, of "stretching the facts".
There seems little doubt that the attitude of judges has been determined to a very substantial extent by the assumption, almost always correct, that a defendant is insured. The result was that the broad community of relevant defendants bore the burden of damages and costs awarded to an injured plaintiff. Judges may have proven more reluctant to make findings of negligence, if they knew that the consequence was likely to be to bankrupt the defendant and deprive him or her of the family home.
The line between the kinds of mistakes or unfortunate results that are an inevitable concomitant of conduct or professional practice, on the one hand, and the sorts of mistakes or results which should not occur at all, on the other hand, may have been drawn in a different way on many occasions, in the absence of the ubiquity of insurance. The proposition that any degree of fault - whether minor or gross - justifies compensation for the whole of a plaintiff's loss - whether catastrophic or minor - may also not have been applied in quite the same way, in the absence of the ubiquity of insurance.
There is a growing body of recent High Court decisions in favour of defendants. Those decisions would have gone the other way if the trend had continued [5]. The number of such cases is multiplied manifold in recent judgments of intermediate courts of appeal. In my opinion, the long term trend has been reversed. There is, however, real doubt as to whether the parliaments have enough patience to allow this development to work itself out. This may be affected by a perception that the trend in High Court authority is not reflected in some areas, e.g. in relation to the liability of public authorities [6].
It is not possible in this paper to consider the various social functions performed by the law of torts or the philosophical underpinnings of that law. The principles involved in ensuring a fair system of compensation, the desirability of behaviour modification or deterrence and the moral foundations of the relevant legal principles - frequently referred to in terms of "corrective justice" - are material and relevant considerations to the process of decision making currently underway. There is a significant range of permissible opinion about the weight to be given to these various considerations.
The traditional function of the law of negligence, reinforced as this function is in almost all cases by insurance, of distributing losses that are an inevitable by-product of modern living (the theme of Fleming's Law of Torts on which many of us were weaned) appears to have reached definite limits as to what society is prepared to bear. Furthermore, there is a substantial body of anecdotal evidence of undesirable side effects of the present system: rural GP's that have ceased doing obstetrics; councils that have removed such lethal instruments as swings and seesaws from children's playgrounds; charitable fund raising events that have been cancelled. The only reason why all our rock ledges and cliff tops are not festooned with signs is that nobody believes that they would actually affect the outcome of litigation and would probably make things worse.
For those of us who came to maturity during the years of the welfare state, the relevant "progressive" project for the law was to expand the circumstances in which persons had a right to sue. We were brought up on "Australia Unlimited" supplements in the quality newspapers. We are now more conscious of limits - social, economic, ecological and those of human nature. Hobbes has triumphed over Rousseau. For several decades now, the economic limits on the scope of government intervention have received primacy in more and more areas of social discourse. The law cannot be insulated from such broader trends in social philosophy. Progressively, such limits have been introduced in legislation qualifying the common law. Much more is in prospect.
Pressure on Premiums
A central concern of the past and prospective statutory modifications to the common law has been the increase of premiums for contracts of liability insurance. This has generally been the primary focus of attention, to the virtual exclusion of other policy considerations that are pertinent to the decision making process. It is the primary focus of attention in the current debate. I accept that it is a consideration of critical significance. The nature of the legislative changes that have already been made, and which are now in prospect, strongly indicate that the community is not prepared to pay for the level of compensation which the judiciary, and the legal profession generally, has come to regard as appropriate.
Government concern with the social and economic effect of premiums is now reinforced by the substantial interest of taxpayers in the operation of the insurance system. It appears that government has accepted the position of reinsurer of last resort. This is reflected in the taxpayer funded protection of policy holders of HIH; Commonwealth support, temporary and possibly long term, of the financial capacity of the major medical insurer; guarantees by the governments of two States after the withdrawal of a major reinsurer from the market of the system of "insurance" established with respect to building defects and the insolvency of builders; proposals for government underwriting of risks associated with terrorism.
It took many years for the government role as "lender of last resort" to take the institutional form of a contemporary central bank. We are at the early stages of institutional development of the "reinsurer of last resort" function. In this regard we will not deny ourselves the tortured delights of federalism, that so obviously await us.
I have long accepted that pressure on premiums is a pertinent consideration for judges who are asked to extend the law in some manner or another. I hope you will pardon me the sin of self-quotation, but I do so in order to indicate that this is not a matter that has emerged as a concern of mine only in the light of recent debate. In 1999, I said:
"The judiciary cannot be indifferent to the economic consequences of its decisions. Insurance premiums for liability policies are, in substance, a form of taxation (sometimes compulsory but ubiquitous even when voluntary) imposed by the judiciary as an arm of the State. For many decades, there has been a seemingly inexorable increase in that form of taxation by a series of judicial decisions, on substantive and procedural law." [7]
I believe that this remains an appropriate perspective.
Judicial Concern
Over the period that the courts have, to use Professor Atiyah's phrase, "stretched the law", a number of judges have noted with concern the implications of what was happening. On occasions that has led judges to express their dissent in strong terms. Let me remind you of just a few expressions of opinion of this character.
Justice McHugh, at the time that he was a Judge of Appeal in New South Wales said, in 1985:
"I think that it is impossible to read recent decisions of the High Court of Australia without realising that employers are now required to comply with safety standards which, only 20 years ago, would have been seen as imposing an onerous, even an absurd burden on employers. Cf Turner v State of South Australia (1982) 56 ALJR 839 with Skinner v Barac (1961) 35 ALJR 124 and Commissioner for Railways v O'Brien (1958) 100 CLR 211.
Throughout the common law of negligence, but particularly in the employer/employee field, the standard of care required of a defendant has moved close to the border of strict liability." [8]
The reference to "strict liability" was not, of course, a reflection of an appropriate legal test, but an indication of what appeared to his Honour to be the practical outcome of the application of the law. The use of the terminology of "strict liability" was not treated with favour on appeal in the High Court [9].
As Clarke JA pointed out in a case about diving into a swimming pool, the applicable law:
"... effectively places the Council in the position of an insurer"
and
"... the present situation in which liability is imposed for negligence in circumstances which a lay person could be forgiven for thinking bore little relationship to the failings of the reasonable person. Indeed, although McHugh JA's statement in 1985 ... that the 'standard of care has moved close to the border of strict liability' was criticised in the High Court ... it seems to me accurately to reflect the modern law.
There may be a view, even a preponderant view, that this is a desirable development of the law because otherwise seriously injured plaintiffs may be forced to rely on social services supplied by the government. But there are, as it seems to me, serious implications flowing from the far reach of the present doctrine ... Will, for instance, local councils...[be] unable economically to secure pubic liability insurance and will they then close down their pools?" [10]
Meagher JA made observations to similar effect [11].
Last year, Thomas JA said:
"[4] The rules currently embraced by our system include:
1. A reduced level of causation necessary to sustain a claim [The substantial lowering of the principles of causation previously recognised is discussed in Wylie v ANI Corporation Ltd [2000] QCA 314, paras [43-48], and in Hawthorne v Thiess Constructors Pty Ltd & Anor [2001] QCA 223, paras [10-12]; cf March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506, 509-516].
2. The rule, epitomised in Watts v Rake [(1960) 108 CLR 158], that a defendant 'must take his victim as he finds him and pay damages accordingly'.
3. Relaxation of control devices such as remoteness of damage to stem the arguable endlessness of the consequence of every human act.
4. Common use of hindsight, despite frequent disavowal, in concluding that virtually anything that has happened was reasonably foreseeable.
5. Ever-increasing levels of damage, aided by the methodology of economic rationalism, unalleviated by collateral benefits actually received [National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569; Fleming, J, The Law of Torts 9th ed LBC, Sydney, 1998 pp274-281], and aggravated by the inclusion of heads of damage that a claimant does not suffer [Griffiths v Kerkemeyer (1997) 139 CLR 161] assessed at 'commercial' rates.
These are some of the tools that increasingly permit unrealistic results in such cases, in both liability and quantum. Today it is commonplace that claimants with relatively minor disabilities are awarded lump sums greater than the claimant (or defendant) could save in a lifetime. The generous application of these rules is producing a litigious society and has already spawned an aggressive legal industry. I am concerned that the common law is being developed to a stage that already inflicts too great a cost upon the community both economic and social.
[5] In a compensation-conscious community citizens look for others to blame. The incentive to recover from injury is reduced. Self-reliance becomes a scarce commodity. These are destructive social forces. Also much community energy is wasted in divisive and non-productive work. A further consequence is the raising of costs of compulsory third party, employer's liability, public risk and professional indemnity insurance premiums. These costs are foisted upon sectors of the public and in the end upon the public at large. I would prefer that these problems be rectified by the development of a more affordable common law system, but in recent times its development has been all in one direction - more liability and more damages.
[6] I express these concerns in this particular case because authority constrains me to participate in pushing the boundaries further when I think that the time has already been reached when courts should be seriously re-considering a reformulation of firmer control devices than those that currently exist. I fear we are developing a creature we can no longer control." [12]
His Honour recently repeated some of these observations in the course of his farewell speech as a Judge of Appeal of the Supreme Court of Queensland.
Justice Fitzgerald when he was a Judge of the New South Wales Court of Appeal expressed similar sentiments when he said:
"[43] An infinite variety of circumstances produce a foreseeable risk of injury which could often be eliminated or reduced. The current tendency to consider only individual circumstances which produce injury and the means by which those circumstances could have been changed and the injury avoided is redefining the foundation of the law of negligence by impermissibly expanding the content of the duty of care from a duty to take reasonable care to a duty to avoid any risk by all reasonably affordable means. Such an approach pays insufficient regard to the degree of the risk of injury from the particular circumstance which caused injury and to the time, effort and cost of avoiding the risk of injury from all circumstances which might have caused injury and the financial capacity of a defendant to undertake such a task. A situation immune from criticism by an imaginative forensic engineer cannot be achieved by the removal of isolated risks but necessitates the removal of all sources of risk.
...
[45] Ridiculous and exaggerated claims, sometimes followed by appeals when they are unsuccessful, are increasingly frequent. Employers, motorists, hospitals and schools, for example, or rather their insurers, have become virtual insurers of those who are injured by their activities. There might be good policy reasons for this. However, unless its evolution is appropriately controlled by judicial commonsense, fundamental concepts will be incrementally eroded and the law of negligence will eventually require each citizen to make life a risk-free activity for everyone else." [13]
Expansion by Statute
For many years parliaments acted on the basis that judges were too conservative and pro-defendant. Legislative intervention commenced in the 19th century when Lord Campbell's Act overturned the common law rule against recovery of damages for the death of another person.
Similarly, the British Employers Liability Act of 1880, eventually adopted throughout Australia, abolished the doctrine of common employment by which an injured worker was denied a right of redress against his or her employer, whenever injury resulted from the act of a fellow worker.
At common law the Crown was immune from suit. Such immunity was progressively removed in Australia in the 19th century, but not until the mid 20th century in Britain and the United States. [14]
The creation in the early 20th century of no-fault workers compensation schemes ensured some level of recovery for injured workers, with compulsory insurance protecting the workers from insolvency of their employers.
Further legislative reform in the middle years of the 20th century was also generally beneficial to plaintiffs. For example, the compulsory third party motor vehicle scheme, adopted in New South Wales in 1942, ensured that in this major category of accidents plaintiffs would receive compensation in practice.
Other reforms in New South Wales, contained in the Law Reform (Miscellaneous Provisions) Acts of 1944 and 1946, enabled plaintiffs to make claims directly on insurers, established third party procedures and permitted claims for nervous shock in circumstances which had been refused at common law [15].
Of particular significance was the legislative creation of an apportionment regime, commencing with the British Act of 1945, not adopted in New South Wales until 1965, overturning the position at common law in which contributory negligence was a complete defence, albeit subject to a good deal of "stretching" [16].
I have referred to the New South Wales legislation with which I am most familiar. Legislation to similar effect was adopted in all Australian states, often earlier than in New South Wales.
In the course of debate on these matters, it is frequently said that Parliament should be slow to abolish common law rights. But it is not often appreciated how much of what is now regarded as common law rights is in fact the creature of statute.
The overwhelming majority of industrial accident claims would not be maintainable if statute had not abolished the doctrine of common employment. Many motor vehicle accidents could not have been pursued as a practical matter, if the legislature had not created a compulsory system of third party insurance. A significant proportion of common law claims, relevantly in the public liability area, may not have been pursued if the common law principle that contributory negligence was a complete defence had not been replaced by apportionment legislation. Governmental instrumentalities appear frequently as defendants. They can only be sued at all because statute has abolished the common law doctrine of Crown immunity.
No doubt, in many respects, the common law would have developed in a way that ameliorated the original position, even in the absence of statute. Nevertheless, to a significant degree, contemporary proposals to change the law would have the practical effect of changing statutory rights which abolished common law restrictions rather than abrogating "common law rights".
Restriction by Statute
By about 1980 the process of statutory intervention to overcome what was seen as conservatism by the judiciary in awarding damages to plaintiffs had ceased. From the 1980s to the present time, legislative intervention has been based on the alternative assumption that the judiciary was too plaintiff oriented. A generational change in the judiciary, involving a less conservative orientation, appears to have coincided with a change in social philosophy in the broader polity, which moved in a more conservative direction. There may be an iron law which dooms judges to always be a decade or two behind the times.
Throughout Australia, major parts of the law of negligence have been removed from the decision making authority of the judiciary. Common law principles have been replaced by a bewildering variety of statutory formulations in an ever expanding proportion of the heartland of the tort. The detail varies from State to State, but the direction is the same. Again I will concentrate on the New South Wales legislation with which I am most familiar, although similar kinds of developments have occurred in all States and Territories.
Substantial amendments to the common law began in New South Wales with respect to motor vehicles in 1984 and industrial accidents in 1987. The respective schemes have since been modified from time to time (including modifications temporarily restoring some common law rights after a change of government in 1988), culminating in major amendments to the motor vehicle scheme in 1999 and to the industrial accident scheme in 2001, the latter encompassing both the workers compensation system and common law [17].
The Health Care Liability Act 2001 made major changes to the common law for recovery in medical negligence cases. Further significant changes in this field are in prospect. There will also be legislative intervention, possibly on a national basis, restricting the common law relating to public liability claims. A wide range of other changes to the law of torts is under investigation, with a significant possibility of national intervention, but a high probability of change in New South Wales.
There is now considerable diversity in the rules applicable, depending on whether someone has a motor vehicle accident, an industrial accident, is injured by means of medical negligence or falls outside a statutory scheme. No doubt, there will be further differences in the context of public liability insurance [18]. The kinds of differences that presently exist in New South Wales between the different bases of liability include the following.
For motor vehicle accidents and medical negligence cases, economic loss can now only be recovered up to a maximum of $2,603 per week (indexed). In the case of motor vehicle accidents a threshold excludes the first five days of loss. In the case of an industrial accident, there is a threshold of 15 percent of whole person permanent impairment and a maximum of $1,000 per week (indexed), with no recovery for loss of earning capacity after the age of 65. No such limits apply at common law for other types of injuries.
In the case of non-economic loss, there is no maximum amount at common law generally. In the case of industrial accidents, this head of damage is not now recoverable at all. For motor vehicle accidents, there is a maximum of $284,000 (indexed), with a threshold of 10 percent permanent impairment. In the case of medical negligence, the maximum is $350,000 (indexed), with a threshold of 15 percent of the most extreme case, and a sliding scale in between.
Griffiths v Kirkemeyer damages are not now available at all for industrial accidents. In the case of motor vehicle accidents and medical negligence, such damages are only available if the services would not have been provided but for the injury, but in the case of motor vehicle accidents, there is a threshold and a cap for such recovery.
Interest on damages awards in the case of industrial accidents is available only as a penalty and at 75 percent of the rate fixed by the Supreme Court for common law actions. In the case of medical negligence, no interest is payable on non-economic loss and interest on economic loss arises only when the loss is incurred and is payable at the ten year Commonwealth Bond rate. In the case of motor vehicle accidents, no interest is payable on non-economic loss, or on past gratuitous care. For economic loss, interest is payable only in certain specified circumstances and is paid at 75% of the rate fixed by the Supreme Court for common law actions.
The differences between the three statutory schemes, with no doubt further differences to come in the proposed scheme for public liability, are a reflection of the fact that the persons driving the reform process are insurers or public instrumentalities with equivalent interests. Different insurers and administrators are involved in the different areas of liability. The primary source of ideas about what changes are required have come from the perspective of insurance underwriters seeking to limit claims (and therefore premiums), or their functional equivalents in a government backed scheme seeking to restrict the call on public funds, often in the context of substantial unfunded liabilities.
Generally the objective of the change is a specific target of an insurance premium for a particular activity. The 1999 changes in New South Wales to the motor vehicle scheme were specifically directed to "achieve a $100 reduction in the average price of greenslips", as promised by the recently re-elected government at the previous election [19]. Similarly the major changes in 2001 to the workers compensation and common law systems were directed expressly to reducing premiums to 2.8 percent of the payroll, from an estimated 3 percent of payroll at the time [20].
Inevitably, different areas of liability will end up with different schemes, creating inexplicable and unjustified variations in the rules that are applied to determine what a plaintiff may recover. In the long term, in my opinion, these differences are likely to create resentment in the community. Why should compensation be fundamentally different depending on whether injury occurred in a car or in a car park or at work or on the operating table or in a public swimming pool or at a supermarket? It will be very hard to retain any sense of fairness for the system as a whole. This is an inevitable result of underwriter driven reform.
A feature of some of these schemes is the imposition of a cap on recovery for a head of damage, such as general damages, with a statutory deeming of this amount to be a fictional "worst case" to which all cases must be adjusted. There is no principle in such a cap. Similarly, thresholds, as variously expressed, are said to be based on a policy to refuse small claims, but it is hard to discern any principle in determining the cut off point. Such anomalies are also an inevitable result of underwriter driven reform.
Principle Driven Reform
There was, at all times, an alternative model for legislative intervention - which can be called principle driven reform - that was equally capable of restraining escalation in insurance premiums, by restricting liability and damages in accordance with the application of universally applicable principles. These kinds of reforms are, however, very difficult for underwriters to price. They also require a higher degree of sophistication about the origin and history of various rules and principles that interact in the judicial process to produce the end result of awards for damages.
A good example of the alternative approach of principle driven reform is to be found in the Personal Injury Damages Bill 1990 which was introduced into the New South Wales Parliament, but which did not proceed. That Bill proposed a variety of changes: including abolition of the defence of voluntary assumption of risk, whilst allowing a reduction in damages where the defence would have otherwise been available; requiring damages for economic loss to be reduced by the amount of certain payments that the plaintiff would receive; restricting recovery with respect to gratuitously provided home care; prohibiting the award of exemplary damages; requiring a court to have particular regard to the failure by a defendant to take precautions and steps to minimise risks; proposing limits on the amount of damages for non-economic loss. Some or all of these kinds of restrictions are included in the special schemes, under their various Acts, to which I have referred. The most significant matter, however, is that the 1990 Bill was intended to apply to all kinds of actions for personal injury.
It is possible to identify a wide range of changes which could, cumulatively, achieve the apparent objective of reducing the total amount of resources that the community is required to make available for purposes of compensation through insurance premiums, insurance company returns on funds and taxes. Changes based on principles are, in my opinion, more likely to prove satisfactory. A useful source of such principles is the judgments which would have limited recovery in some way and which were overruled on appeal or were dissenting judgments in the High Court or were superseded judgments of the High Court.
Reasonable Foreseeability
If it were necessary to identify a single point of departure for the imperial march of the tort of negligence, and the process of what Atiyah calls "stretching the law", it is probably the reasons that Lord Reid delivered for the Privy Council in Wagon Mound No 2 [21]. This was an appeal directly from a single judge of the Supreme Court of New South Wales, Mr Justice Walsh, later to serve on the High Court. There was no intermediate court of appeal which may have expressed divergent points of view. The judgment of the Privy Council was delivered at a time when the practice of the Board was to deliver a single inscrutable judgment which has all the power of a legislative enactment, precisely because it is bereft of that divergence of reasoning amongst different judges in a final court of appeal, that is more appropriate for the principled development of the law.
A comparison of the closely reasoned and nuanced first instance judgment of Walsh J [22] with the Delphic simplicities of the judgment of the Privy Council [23] - sometimes the product of the compromises required for a joint judgment - is not such as to give great confidence in the reasoning of the latter. Nevertheless, at a time when Australian judges were more deferential to English judicial reasoning than they have been in recent years, Wagon Mound No 2 proved to be a decisive point of departure.
In rejecting the case in negligence, Sir Cyril Walsh placed particular weight on his assessment of the relevant facts in which the likelihood of an oil spillage catching fire was something that "very rarely happened" and that was likely "only in very exceptional circumstances" [24]. This was rejected as an appropriate test in the Privy Council, which applied a test of whether or not something was "a real risk" in the sense that it would not be brushed aside as "far-fetched" [25].
The test of foreseeability for purposes of creating a duty of care has since been accepted to be satisfied even if a relevant risk is a mere remote possibility. It is most frequently referred to in terms of the language of the High Court in Wyong Shire Council v Shirt [26]: a risk of injury is foreseeable unless it can be described as "far-fetched or fanciful". Issues of likelihood or probability are said to arise in the context of reasonableness of conduct at the level of breach. Wilson J dissented, rejecting the idea that "a real risk" could be identified with a "remote possibility" [27].
Lawyers tend to continue to refer to the test as being one of "reasonable foreseeability". I cannot see that "reasonableness" has anything to do with a test which only excludes that which is "far fetched or fanciful". The test appears to be one of "conceivable foreseeability", rather than "reasonable foreseeability".
I am reminded of the observations of George Orwell in his great 1946 essay Politics and the English Language where he said:
"... the English language ... becomes ugly and inaccurate because our thoughts are foolish, but the slovenliness of our language makes it easier for us to have foolish thoughts."
And
"But if thought corrupts language, language can also corrupt thought. A bad usage can spread by tradition and imitation even among people who should and do know better."
So it appears to be with the continued use of the terminology of "reasonable foreseeability".
The problem is most acute in terms of what a cognitive psychologist would call hindsight bias. As Sir Owen Dixon expressed it, in the course of argument in Chapman v Hearse [28]:
"I cannot understand why any event which does happen is not foreseeable by a person of sufficient imagination and intelligence."
If we had kept a firm hand on the idea of "reasonableness" as a limiting factor, rather than dismiss foreseeability as "undemanding" [29], we would never have needed the flirtation with "proximity". Nor would the English have needed their flirtation with the two stage Anns test [30]. The search for a unifying principle in the law of negligence has proven to be as futile as the search for a unifying principle in the laws of physics.
There are indications that the High Court will revisit the "undemanding" nature of the test. Whether by High Court decision or by statute, change can be effected. The case law suggests alternative formulations. For example, a negative formulation favoured by Sir Garfield Barwick was whether or not injury was "not unlikely to occur" [31]. We could do a lot worse that adopt the test of Walsh J in Wagon Mound No 2: a test of "practical foreseeability" [32].
I do not suggest it is necessary to establish a new test by way of legislation. However, it may be desirable to reject the extension of liability to remote possibilities, by overruling the restriction inherent in the "far-fetched and fanciful" test [33].
Breach
On the issue of breach, Walsh J in Wagon Mound rejected the suggestion that a reasonable man ought to have taken precautions wherever there appeared to be a possibility of danger. His Honour confined the need for precautionary action to circumstances in which the risk was "significant enough in a practical sense" [34]. In this regard the Privy Council adopted a criterion which was expressed in three different ways. First, the risk, however small, should not be neglected "if action to eliminate it presented no difficulty, involved no disadvantage, and required no expense", secondly, whether or not the injury was "easy to prevent" [35], and thirdly, in the case of a very low probability occurrence:
"A reasonable man would only neglect such a risk if he had some valid reason for doing so, e.g., that it would involve considerable expense to eliminate the risk." [36] [Emphasis added]
This approach has been followed in Australia. On one occasion Gibbs CJ expressed the test of breach as satisfied where there is "little difficulty or expense" even in a case of a remote risk [37].
The judgment of Mason J in Wyong v Shirt removed questions of probability and reasonableness to the level of breach. Mason J said:
"The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position." [38]
Notwithstanding the balancing exercise for which Sir Anthony called, there appear to be many cases in which it has not been undertaken. Very serious consequences can be occasioned by extremely unlikely events which could have been prevented by slight expenditure. By reason of hindsight bias, all too often the focus of attention is only on the expenditure that would have been required to avoid the particular incident that actually occurred, without consideration of what would have been required to avert a myriad of other conceivable but equally remote contingencies.
Perhaps the high water mark of the High Court's expansion of negligence was Nagle v Rottnest Island Authority [39]. This was a case in which the cost of a sign (in other cases a verbal warning) was virtually zero and was contrasted with the consequences of the admittedly foolhardy conduct of diving into water from a rock ledge.
Subsequent authorities, including in the High Court, appear to require more in terms of breach [40]. I refer to the detailed analysis of the complexities potentially involved in assessing breach in such a case, recently given by Justice Bryson in a case about slipping at the Bondi rock pool [41].
My preference would be to go back to what Sir Cyril Walsh said in the Wagon Mound and start again. However, we may need some legislative help to step over the Privy Council judgment. We need to reverse the process described by Fitzgerald JA, quoted above, by which a "duty to take reasonable care" has become a "duty to avoid any risk by all reasonably affordable means".
What may be appropriate is legislation that permits reappraisal and future development of the common law, rather than a code that prescribes a test. A provision which states that, in determining whether a duty of care was breached, a court must always have regard to the remoteness of a risk irrespective of how readily it could be avoided, would probably be enough.
Obvious Risks
An increased emphasis is now given to the autonomy of the individual [42]. As Lord Hoffman expressed it [43]:
"... there is a difference between protecting people against harm caused to them by third parties and protecting them against harm which they inflict upon themselves. It reflects the individualistic philosophy of the common law. People of full age and sound understanding must look after themselves and take responsibility for their actions."
The re-emergence of such a perspective needs to be reconciled with the principle underlying the apportionment legislation, that contributory negligence is not a complete defence.
Part of the contemporary pressure for legislative intervention is based on a perspective that the practical operation of the law does not require persons to take responsibility for their own actions. Communal expectations appear to have shifted in this respect. Once again, an analysis of past cases may indicate the direction of desirable change.
Jacobs J sought to confine both the duty and the standard of care to the specific circumstances of each case, rejecting the proposition that a duty of care could exist in the abstract[44]. His Honour's approach would have denied recovery for risks that should have been obvious to the particular plaintiff. The approach was rejected by the High Court [45], which established a doctrine that the scope of the duty of care required a defendant to regard as foreseeable, and guard against, the possibility that individuals would fail to have regard for their own safety.
The foreseeability of inappropriate conduct by a plaintiff was originally expressed in terms such as "thoughtlessness" or "inadvertence" or "carelessness" and even, subsuming a legal test, "negligence" [46]. This principle drew on the case law which established that negligent conduct by an intervening third party was foreseeable. In each respect, the practical operation of the principle sometimes goes well beyond mere "inadvertence" etc.
Again Nagle v Rottnest Island Authority may constitute the high point. The joint judgment said:
"It is now well established that a person who owes a duty of care to others must take account of the possibility that one or more of the persons to whom the duty is owed might fail to take proper care for his or her own safety." [47]
In his dissent in Nagle v Rottnest Island Authority [48] Brennan J concentrated on the status of the defendant as a public authority. His Honour said:
"... in practice and with the wisdom of hindsight, a concentration on the gravity of the particular plaintiff's injury, the foreseeability of such an injury occurring (albeit contributed to by the plaintiff's own carelessness) and the modesty of the cost of fencing off or warning against the danger causing the injury would tend to impose on the public authority a liability which might not have been imposed if attention had been focussed on the duty owed by the public authority to the public at large. The test expressed by Dixon J in Aiken v Kingborough Corporation [(1939) 62 CLR 179 at 204] focuses attention on the nature of the danger itself assessed prior to the event according to the obviousness of the danger and the care ordinarily exercised by the public." [49]
Accordingly, by reason of the fact that the duty was owed to the public at large, his Honour applied a different test. He asked whether the danger was "apparent and not to be avoided by the exercise of ordinary care" [50].
In 1986, in one of the High Court cases which established this principle, Mason, Wilson and Dawson JJ said:
"What is considered to be reasonable in the circumstances of the case must be influenced by current community standards." [51]
Those standards seem to have changed.
It may be that contemporary community standards suggest that recovery should no longer occur where the conduct of a plaintiff or a third party, cannot be characterised as "inadvertent" or "careless" or "negligent" but constitutes gross negligence. Such a development may still be open at common law but, in view of the actual result in Nagle, courts may find it difficult to apply.
Specific Rules of Liability
The High Court decision in Concrete Constructions v Nelson [52] prevented the tort of negligence being entirely subsumed by the imperial march of s52 of the Trade Practices Act. That enabled the imperial march of negligence to proceed, colonising such areas as the doctrine in Rylands v Fletcher [53] and subsuming, within the general neighbour principle, specific rules that had been developed over many years. Sometimes this occurred in the expectation that the limitations inherent in the special rules would be replaced by the limitation of the operation of "proximity", but the rules did not revive when "proximity" went.
Sir Gerard Brennan was frequently a dissenting voice advocating the retention of the traditional rules relating to special categories as an important aspect of certainty of the law of negligence.
To similar effect, the replacement of categories of relationship by a general standard requiring individual consideration in each case, was one of the examples Chief Justice Gleeson gave, writing extra-judicially, of the search for the holy grail of "individualised justice" [54].
On one occasion, Sir Gerard emphasised the need to identify:
"... those further elements which are appropriate to the particular category of negligence and which confine the duty of care within narrower limits than those which would be defined by an unqualified application of the neighbour principle." [55]
When rejecting the then dominant test of proximity, Sir Gerard Brennan stressed the significance of:
"...appropriate limitations in particular propositions of law, applicable to differing classes of case." [56]
His Honour said that such limitations enhance the certainty of the law, a matter of crucial interest to insurers.
One such development was the removal of the categories of occupiers liability [57], although they were, by then, said to be "special duties" co-existing with the general duty. A clearer example of replacing a special category by the general test is the abolition of the highway rule in Brodie v Singleton Shire Council [58]. In both those respects there may be a principled basis for differentiation: a clear statement of a lower level of responsibility to trespassers and the inappropriateness of judges, in substance, determining expenditure priorities for elected governmental bodies. It is open to Parliament to restore the pre-existing rules to some degree, although it is difficult to identify a principled basis for restoring all the categories of occupier's liability, and no point in doing so if such duties were concurrent with the general duty.
Mental Trauma
Of all the floodgates waiting to be opened, none is of greater significance than the special rules restricting liability for mental trauma. The English position, with its distinction between primary and secondary victims, is not a model of precision. In Australia, actual decisions in many cases appear to be undermining the control devices. This sometimes appears to be the case because counsel simply do not rely on such devices, so that they are not referred to in the reasons for judgment with the result that the case is subsequently referred to as authority inconsistent with the control [59]. The pressure to rationalise this area of the law is considerable. The less I say about it the better. The High Court is reserved on this issue in two cases, including in an appeal from one of my own judgments [60].
Standard of Professional Negligence
Until Rogers v Whitaker [61]some Australian courts had followed the English Bolam test [62] which, in substance, meant that it was not open to a court to find a standard medical practice to be negligent. That test applies not only to matters of diagnosis and treatment, but also to information and counselling [63].
The reinstatement by legislation of the Bolam test was considered in New South Wales last year in the context of the adoption of the Health Care Liability Act 2001. This was not done. No doubt it is a matter again under consideration. It represents a principle that could be adopted and which restricts findings of breach. It is difficult to see any other change which will restore balance in those cases that are particularly likely to engage the compassion of the judiciary e.g. obstetrics cases which always concern injured children, or the tragic side effects that may accompany neurosurgery.
There does not seem to be any reason why the Bolam test, if adopted, should not extend to all areas of professional negligence.
Proportionate Liability
In this address I have been primarily concerned with recovery for personal injury. This has been the focus of most of the recent debates. Nevertheless, the issues are more wide ranging, extending to the basis of recovery for property damage and the expanding, but uncertain, scope of recovery for pure economic loss.
One of the changes that was considered a few years ago, particularly in the context of pecuniary damages, is some form of proportionate liability in lieu of solidary liability: a defendant who was only ten percent responsible for the injury would only bear ten percent of the damages. This would create the possibility of less than full compensation to an injured plaintiff. Such a result could be regarded as of less concern in the case of financial loss, than in the case of personal injury. It is by no means clear why one defendant, because it is wealthy or insured, should, in effect, become an insurer against the insolvency or impecuniosity of co-defendants, who have contributed substantially to the pecuniary loss in question.
The recent proposal for the introduction of a proportionate liability system in this area did not lead to change [64]. As I understand what happened, the proposal ultimately floundered by reason of opposition within the Commonwealth Treasury, which had administrative responsibility for the consumer protection provisions of the Trade Practices Act 1974 (Cth). It is unquestionably the case that any attempt to limit recovery for property loss or pure economic loss in this, or any other way, would prove futile unless parallel restrictions were incorporated in the Trade Practices Act and the Fair Trading Acts of the States.
It may well be that, in the current climate, the issue of proportional liability will receive further attention. It would be, for example, a matter of great significance for professional liability of auditors, lawyers and other professionals.
Death Benefits and Contributory Negligence
Relatives claiming under the Compensation to Relatives Act 1897 upon the death of a relative find themselves in a better position than the deceased would have been if he or she had survived and sued. There is no apportionment under that Act for contributory negligence of the deceased [65]. Each of the specific regimes in New South Wales - for motor vehicle accidents, industrial accidents and medical negligence - have changed this position. This is a reasonable principle that could be adopted as a general rule.
Damages: Offsetting Benefits
One matter of significance for the size of damages awards involves the treatment of offsetting benefits. When are such benefits to be treated as acceptable double recovery and when are they to be deducted from an award of damages? In a joint judgment, Justices Mason and Dawson once approved a statement that in this area of the law "logic is conspicuous by its absence" [66]. Professor Luntz emphasises the considerable uncertainty that has long plagued this topic [67].
The High Court's decision that invalid pensions would not offset compensation [68] was reversed by statute. Similar action may be appropriate in other respects.
The rule permitting double recovery in some circumstances is long established and has been articulated and defended on a number of occasions in judgments of the High Court [69]. There are good reasons for the rule. Nevertheless it does involve a focus on the liability of the defendant, rather than on the need of a plaintiff for compensation. This focus may no longer be appropriate in the context of the kinds of changes to community attitudes to compensation which now appear to have emerged. Any change in this regard would require statutory intervention.
It has long been held that any recovery by a plaintiff pursuant to a first party personal insurance contract is not a matter to be taken into account by way of reduction of damages payable by a defendant [70]. The results may be bizarre. Defendants of a deceased may take advantage of s3(3) of the Compensation to Relatives Act and recover substantial amounts under a death or accident policy, but at the same time they may recover damages as if the estate of the deceased included no such asset. This occurs irrespective of how many premiums may have been paid by the deceased. Any statutory intervention would need to make allowance for premiums paid by the deceased, with compound interest, and for any outgoings not recovered in litigation.
This issue also arises when pension or superannuation entitlements become available to an injured worker ceasing employment. A pension is not to be taken into account in the assessment of damages [71]. In one case in which a policeman was injured, the Court found itself dealing with a situation in which the State of New South Wales was, at the same time, the employer, the tortfeasor and, to a predominant degree, the contributor to the police superannuation fund. The damages were assessed without deduction of the superannuation benefits [72]. Again allowance would need to be made for any employee contributions with an appropriate rate of return.
Professor Luntz considers a number of suggestions for reform of various kinds [73]. The Chief Justice of Canada also considered a range of policy alternatives in a dissenting judgment [74]. In the current context of concern about the impact on insurance premiums, these are matters it is appropriate to address.
Economic Loss
As noted above, in New South Wales, economic loss can only be recovered up to a maximum of $2,603 a week (indexed) in motor vehicle and medical negligence cases. The policy adopted is that persons who earn above, relevantly $135,000 per annum, can reasonably be expected to take out first party insurance against loss of income above that level. I would not wish to be understood to advocate any particular level, but it is a policy that could be adopted more generally. This is a "cap" based on a principle, rather than on a fictitious "worst case".
Gratuitous Services
Griffiths v Kerkemeyer damages have been abolished or modified in different contexts in different States [75].
In New South Wales the three different legislative schemes contain three different legislative responses, ranging from abolition to the imposition of caps. Some important policy issues arise in this area, including questions of gender bias of the law in not valuing services generally provided by women to the same degree as economic loss. Similar principles have been adopted to allow recovery for other forms of voluntary services [76].
The difficulties and anomalies that arise in this context were acknowledged in a joint judgment of four judges of the High Court [77]. Justices Kirby and Callinan have more recently identified many anomalies [78].
The amount awarded under this head now represents a substantial proportion, often about half, of a damages award. It has been extended, by a majority decision of the High Court, to allow interest on past services at full commercial rates. The two dissentients in the Court would have allowed interest at a more moderate rate [79].
One form of restriction on such damages is suggested in intermediate courts of appeal decisions, subsequently overruled, and in the dissenting judgment in the High Court case which effected the overruling.
In Van Gervan v Fenton [80] the majority expressly overruled a number of decisions which suggested a qualification that could appropriately be adopted in this regard based on notions of marital or family obligation [81]. The formulation of Samuels JA, in one of the judgments so overruled, is suggestive:
"... I do not believe that any head of policy (or theory of loss distribution) requires the ordinary currency of family life and obligation to be wholly ignored; or the inclusion in the area of compensation of the support commonly expected and received amongst the members of a family group, even though the actual occasion for its provision may be the tort - caused disability of the recipient." [82]
Deane and Dawson JJ dissented in Van Gervan v Fenton. Their Honours said that such damages should not extend to "services and companionship which would have been provided in any event as an incident of a pre-existing and continuing relationship" [83]. Their Honours expressly referred to the fact that it is the community as a whole which, in substance, bears the burden of such damages through the compulsory insurance system, rather than the individual defendant who caused the loss [84].
This approach suggests a significant, but appropriate, restriction on recovery of damages for gratuitous services that could be adopted by statute. It appears to have influenced the form of restriction adopted in a number of specific contexts, including in New South Wales.
Interest
There is one matter which is, generally, within the province of the courts. The respective Rules Committees of the Courts often determine the appropriate rate of pre-judgment and post-judgment interest. There are two distinct groupings of State and Territory practices in this regard. A comparison of such rates, prepared in the middle of last year, indicates that at that time the Supreme Courts of Western Australia, South Australia and the Northern Territory applied a rate of about six percent per annum, whereas all other State and Territory Supreme Courts, and the two Federal Courts, applied rates of four to six percentage points above that rate. The degree of difference will have diminished since that time, by reason of subsequent reductions in rates, likely to have been greater in the States with higher rates.
Nevertheless, there is a clear distinction between the two kinds of approaches. In part this may be due to a difference as to the appropriate foundation principle. Should a person who has been kept out of his or her money receive interest on the basis of what that person could earn if he or she had the money to invest or what that person would have to pay if he or she wished to borrow? That differentiation would amount to several percentage points, not explaining, however, the entirety of the difference that appears to have existed last year between the respective State Supreme Courts in this regard.
In the current climate it may be appropriate for those courts that apply the higher rates of interest to review the reason for the differentiation that appears to exist. Insofar as the higher rate was intended to be an encouragement for insurance companies to settle, that may no longer be an appropriate consideration.
Discount Rate
A factor which has a substantial impact on the total amount payable is the discount rate used to determine the present value of future loss. In 1981 [85] the High Court compromised on a figure of three percent. The high rate of inflation, which had then recently been experienced, tended to push the rate down and, accordingly, pushed lump sums up. That consideration may be differently assessed today. It would be appropriate for the High Court to consider a review of the now twenty year old decision.
The three percent rate has been modified in various States, in different ways in different areas. In every case the statute increased the discount rate. In New South Wales, for each of the special regimes in motor vehicle, industrial accidents and medical negligence, the rate has been increased to five percent. That rate of five percent appears frequently in other States, but in Western Australia a rate of six percent applies and in Tasmania the rate is seven percent. There is considerable variation between the States as to the elements and the categories of negligence to which the modified rate is applicable [86].
In all cases of statutory modification it appears that the High Court compromise is regarded as resulting in lump sum damages which are too high. There is no reason in principle why statutory modification should not go further and establish a higher rate applicable to all categories of negligence and all elements in the award of damages.
Conclusion
The considerations referred to above are by no means a complete list of changes that could lead to a reduction of the pressure on premiums in a principled way. Further review of the case law and legal literature will no doubt reveal many other matters that have been raised for consideration, or which are suggested by overruled or dissenting judgments. There are, no doubt, numerous other elements in the cause of action for negligence, and in the principles applied to the determination of damages, which could be reconsidered in a principled way.
I refer, for example, to the development of the doctrine of non-delegable duties [87], the application of the test of "material contribution" in the case of multiple causes and the suggestion that the onus of proof may shift where a risk has materialised [88], and the issue of causation more generally [89].
Some combination of the matters to which I have referred may, if implemented, permit substantial reform of the underwriter driven special regimes, such as those established in New South Wales for motor vehicles, industrial accidents, medical negligence and, in prospect, public liability. An approach that restricts liability and damages in a principled manner is capable of resulting in the same degree of control of insurance premiums as that achieved by these special schemes. Such an approach would, in my opinion, achieve that result in a manner more likely to be regarded in the long term as fair and, therefore, to receive broad community acceptance.
At present, the pressure for change, particularly in some areas of insurance, is regarded as acute and requiring immediate action. Not all of the matters to which I have referred can properly be attended to in a short time span. What appears to be required is a longer term process of systematically reviewing a range of options, broader than the specific items that I have identified on this occasion. I regard this address as being very much a work in progress.
An appropriate way of approaching such a task would be to invoke the resources of all of the law reform commissions throughout the Commonwealth and to allocate specific matters for inquiry to individual commissions. The entire project could be supervised under the auspices of the Standing Committee of Attorneys-General.
No doubt there will be some reluctance to allow the lawyers to control the agenda in this regard. The comments by judges and others, to which I have referred in this address, should indicate that there is a widespread understanding within the legal community of the difficulties that are posed by the present law, accompanied by a preparedness to recommend meaningful change. It is desirable that this resource is applied to that task.
Endnotes
1 Reynolds v Katoomba RSL All Services Club Limited [2001] NSWCA 234; Aust Torts Reports 81-624 at [26].
2 Luntz, Assessment of Damages for Personal Injury and Death 4th ed (2002) Butterworths at x.
3 Dorothy Truesdale, "Rochester Views the Third Term 1880" (1940) 2(4) Rochester History 1
at 5.
4 Atiyah, The Damages Lottery (1997) Oxford, Hart Publishing, Chapters 2 and 3.
5 See e.g. Agar v Hyde (2000) 201 CLR 552; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 75 ALJR 164; Rosenberg v Percival (2001) 75 ALJR 734; Liftronic Pty Ltd v Unver (2001) 75 ALJR 867; Sullivan v Moody (2001) 75 ALJR 1570; Woods v Multisport Holdings Pty Ltd (2002) 76 ALJR 483; Derrick v Cheung [2001] HCA 48.
6 See Crimmins v Stevedoring Committee (1999) 200 CLR 1; Brodie v Singleton Shire Council (2001) 75 ALJR 992.
7 Kinzett v McCourt (1999) 46 NSWLR 32 at [97] cf at [116].
8 Bankstown Foundry Pty Ltd v Braistina (1985) Aust Torts Reports 80-713 at 69, 127.
9 See Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 esp at 307; see also Mihaljevic v Longyear (Australia) Pty Ltd (1985) 3 NSWLR 1 esp at 9-10 per Kirby P and Liftronic Pty Limited v Unver (2001) 75 ALJR 867 at [37]-[38] per McHugh J.
10 See Inverell Municipal Council v Pennington (1993) 82 LGERA 268 at 275, 278-279; (also reported in (1993) Aust Torts Reports 81-234).
11 Ibid esp at 283. See also Mahoney JA at 273-274.
12 Lisle v Brice [2001] QCA 271.
13 Rasic v Cruz [2000] NSWCA 66.
14 See Paul Finn, Law and Government in Colonial Australia (1977) Melbourne, Oxford UP, Chapter 6.
15 See e.g. Chester v Waverley Municipal Council (1939) 62 CLR 1.
16 See e.g. Alford v McGee (1951-1952) 85 CLR 437; Trindade & Cane, The Laws of Torts in Australia 3rd ed (1999) Melbourne, Oxford UP at 562-564.
17 The major steps in the legislative history are as follows: Motor Vehicles (Third Party Insurance) Amendment Act 1984; Transport Accidents Compensation Act 1987 (introduced in the "Transcover" scheme); Motor Accidents Act 1988; Motor Accidents Amendment Act 1995 and Motor Accidents Compensation Act 1999. With respect to industrial accidents: Workers Compensation Act 1987; Workers Compensation (Benefits) Amendment Act 1989; Workers Compensation (Benefits) Amendment Act 1991; Workers Compensation Legislation (Miscellaneous Amendments) Act 1994; Workers Compensation Legislation (Further Amendment) Act 2001.
18 For a useful comparison of the different systems applicable at the relevant time, see Appendix J of The Commission of Inquiry into Workers Compensation Common Law Matters: Report by The Honourable Justice Terry Sheahan AO, 31 August 2001.
19 See Second Reading Speech Motor Accidents Compensation Bill, Hansard, NSW Legislative Council, 3 June 1999 at 902 (The Hon J J Della Bosca, Special Minister of State, and Assistant Treasurer).
20 Justice Sheahan's Report, supra esp at 19 and 21.
21 Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty [1967] 1 AC 617.
22 The Miller Steamship Co v Overseas Tankship (UK) (1963) 63 SR(NSW) 948.
23 [1967] 1 AC at 643-644.
24 See (1963) 63 SR(NSW) at 977.
25 See [1967] 1 AC at 643.
26 (1979-1980) 146 CLR 40 at 47.
27 Ibid at 53.
28 (1961) 106 CLR 112 at 115.
29 Shirt v Wyong Shire Council [1978] 1 NSWLR 631 at 641 per Glass JA.
30 Anns v Merton London Borough Council [1978] AC 728.
31 See e.g. Caterson v Commissioner for Railways (1973) 128 CLR 99 at 101-102.
32 See (1963) 63 SR(NSW) at 958-959 referring in terms to Morison (1961) 34 ALJ 317 esp at 322.
33 See generally the judgment of Clarke JA in Inverell Municipal Council v Pennington supra and see also the additional observations at the end of the judgment of Meagher JA. See also McHugh JA in Bankstown Foundry v Braistina supra at 69, 127.
34 See (1963) 63 SR(NSW) at 957.
35 Respectively [1967] 1 AC at 643G-644A and 644C.
36 [1967] 1 AC at 642.
37 See Turner v The State of South Australia (1982) 56 ALJR 839 at 840. See also McHugh JA in Bankstown Foundry v Braistina supra at 69, 127, referring to both Wyong Shire Council v Shirt supra at 46-48 and also Turner v The State of South Australia at 840.
38 See Wyong Shire Council v Shirt supra at 47-48.
39 (1992-1993) 177 CLR 423.
40 See Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431. Also, for example, Mountain Cattleman's Association of Victoria Inc v Barron (1998) 3 VR 302 esp at 308-309.
41 Waverley Council v Lodge [2001] NSWCA 439 at [32]-[37].
42 See e.g. Perre v Apand (1999) 198 CLR 180 at [114]-[115]; Agar v Hyde (2000) 201 CLR 552 at [89]-[90].
43 Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360 at 368.
44 Sydney County Council v Dell 'Oro (1974) 132 CLR 97 at 118-121.
45 See Bus v Sydney County Council (1989) 167 CLR 78 at 87-88.
46 The development of this doctrine may be traced through McLean v Tedman (1984) 155 CLR 306 at 311-312; Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 309; Bus v Sydney County Council supra at 90-91; March v E & M H Stramare Pty Ltd (1990-1991) 171 CLR 506 at 520, 536-537. See Fleming, The Law of Torts 9th ed (1998) Sydney, LBC at 134-136, 250-252; and Balkin & Davis, Law of Torts 2nd ed (1996) Sydney, Butterworths at 278-279.
47 (1993) 177 CLR 423 at 431.
48 (1993) 177 CLR 423 at 436-437.
49 Ibid at 440.
50 Ibid.
51 Braistina (1986) 160 CLR 301 at 309.
52 Concrete Constructions (NSW) Pty Limited v Nelson (1991) 169 CLR 594.
53 See Burnie Port Authority v General Jones (1994) 179 CLR 520.
54 Gleeson, "Individualised Justice - The Holy Grail" (1995) 69 ALJ 421 at 428.
55 Jaensch v Coffey (1984) 155 CLR 549 at 576 and see also The Council of the Shire of Sutherland v Heyman (1985) 157 CLR 424 at 481.
56 San Sebastian Pty Ltd v The Minister Administering the Environmental Planning & Assessment Act (1986) 162 CLR 340 at 369.
57 See Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 esp at 499-500.
58 (2001) 75 ALJR 992.
59 For example in State of New South Wales v Jeffery (2000) Aust Torts Reports 81-580, no reliance was placed on either the proposition that there was no "sudden assault on the senses" or on the person of normal fortitude test cf Butler "Voyages in Uncertain Seas with Dated Maps" (2001) 9 TLJ 14.
60 Morgan v Tame (2000) 49 NSWLR 21 and Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35.
61 Rogers v Whitaker (1992) 175 CLR 479.
62 Bolam v Friern Hospital [1957] 1 WLR 582.
63 See Sidaway v Bethlehem Royal Hospital [1985] AC 871.
64 Davis, Inquiry into the Law of Joint and Several Liability: Report of Stage Two (Commonwealth of Australia, 1995); New South Wales Law Reform Commission, Contribution between Persons Liable for the Same Damage (1997) Discussion Paper No 38; New South Wales Law Reform Commission, Contribution between Persons Liable for the Same Damage (1999) Report No 89, esp at chapter 2; Swanton and McDonald, “Reforms to the Law of Joint and Several Liability – Introduction of Proportionate Liability” (1997) 5 TLJ 109.
65 In Bus v Sydney County Council supra, the contributory negligence of an electrician who came into contact with wires he knew to be live was, accordingly, irrelevant, see at 91.
66 Redding v Lee (1983) 151 CLR 117 at 133 quoting from Browning v The War Office [1963] 1 QB 750 at 762.
67 See Luntz, supra at par 8.1.2.
68 The National Insurance Co of New Zealand Limited v Espagne (1960-1961) 105 CLR 569.
69 See e.g. ibid esp at 588-589; Redding v Lee supra at 138. See also Cunningham v Wheeler (1994) 113 DLR (4th) 1 at 10.
70 See Bradburn v Great Western Railway Co (1874) LR 10 Ex 1 at 2-3; State of New South Wales v Davies (1998) 43 NSWLR 182 at 187.
71 See Graham v Baker (1961) 106 CLR 340.
72 State of New South Wales v Davies supra.
73 See Luntz, supra at pars 8.1.3-8.1.5.
74 See Cunningham v Wheeler, supra at 24-41 per McLachlin J.
75 See Luntz, supra at par 4.6.5.
76 See Sullivan v Gordon (1999) 47 NSWLR 319.
77 See Kars v Kars (1996) 187 CLR 354 at 379-382.
78 Grincelis v House (2000) 201 CLR 321 at [25]-[26] per Kirby J and at [60]-[63] per Callinan J.
79 In Grincelis v House, ibid, the dissentients Kirby and Callinan JJ would have applied the more moderate rate of interest referred to in MBP (SA) Pty Limited v Gogic (1991) 171 CLR 657.
80 (1992) 175 CLR 327.
81 The authorities overruled in Van Gervan v Fenton were Johnson v Kelemic [1979] FLC 90-657; Kovac v Kovac [1982] 1 NSWLR 656; Carrick v Commonwealth [1983] 2 Qd R 365; Veselinovic v Thorley [1988] 1 Qd R 191.
82 Kovac v Kovac, supra at 668E.
83 Van Gervan v Fenton, supra at 345-346.
84 See ibid, at 346.
85 (1981) 150 CLR 402.
86 See Luntz, supra at par 7.4.9.
87 See e.g. Kondis v State Transport Authority (1984) 154 CLR 672 at 690; Trindade & Cane, supra at 731 suggesting "deep pockets" to have been a material consideration in the development of the concept.
88 See Chappel v Hart (1998) 195 CLR 232 at [27]; Naxakis v Western General Hospital (1999) 197 CLR 269 at [31] and [127]. See also Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 esp at 315-316 and Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at 278-280.
89 See e.g. Travers "Medical Causation" (2002) 76 ALJ 258 esp at 268.
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