The Use of Policy in Negligence Cases in the High Court of Australia
20 Pages Posted: 30 Aug 2004
There are 2 versions of this paper
The Use of Policy in Negligence Cases in the High Court of Australia
The Use of Policy in Negligence Cases in the High Court of Australia
Date Written: July 2004
Abstract
The High Court of Australia, like all appellate courts, has leeways of choice open to it when deciding the cases that come before it. This is perhaps more obvious than with other appellate courts because the High Court, unlike comparable courts elsewhere, gives brief reasons when it refuses special leave to appeal. All appeals from courts in Australia to the High Court require such special leave. The criteria it applies in granting special leave mean that there are at least reasonable grounds for argument that the decision below is wrong and that the case raises issues of importance. The frequency of dissent in the High Court shows the room that the judges have in deciding each case. Principle alone cannot determine the outcome and the court must turn to values and policy. Instances of this before the 1970s are to be found, but it is only thereafter that these matters came to be brought out into the open.
Important in this regard was the analysis of the tort of negligence in the judgments of Deane J in Jaensch v Coffey and Sutherland Shire Council v Heyman, where values and policy were recognised as playing a role in determining duty of care in novel situations at the stage of deciding whether the relationship between the parties possessed the required degree of proximity. His Honour's claims for the concept of proximity as a universal determinant of the categories of case in which a duty of care was recognised were adopted by almost all members of the High Court while he himself was a member of the Bench, but fell into disfavour thereafter.
Deane J's successor on the High Court, Kirby J, has kept the flag flying for open recognition of and consideration of issues of policy, while acknowledging that the limited materials before the court often makes it impossible to decide on true policy grounds. Other members of the court claim to prefer principle to policy, but policy reasoning permeates many of their judgments.
Policy and values enter into the determination of torts cases not only in relation to duty of care, but also in relation to causation and remoteness of damage and the assessment of damages. Cattanach v Melchior may be seen as raising issues either of the scope of the duty of care or of remoteness of damage; Chappel v Hart and Kars v Kars provide illustrations of policy factors entering into decisions on causation and damages respectively.
An issue not dealt with in the paper is how the High Court could better inform itself of the relevant social facts in assisting it to make its policy decisions. Brandeis briefs, intervention by non-parties and additional expert evidence at trial all have costs. It is hoped that other contributors at the conference will take up some of these matters.
Keywords: Australia, High Court of Australia, tort, negligence, policy
JEL Classification: K13, K40
Suggested Citation: Suggested Citation