Queensland University of Technology Law and Justice Journal
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Anne
Deegan[*]
The distinction between policy and operational factors in the context of
tort law has been a thorny issue for the last fifteen years.
This was due,
among other things, to the uncertainty about the existence of private law duties
owed by public bodies. In Crimmins v Stevedoring Industry Finance
Committee[1] the High
Court appears to have finally surmounted some of the difficulties
surrounding the policy/operational factors distinction.
A review of the
content and scope of the decision in Crimmins case necessitates a
critical appraisal of the public/private dichotomy in legal theory in general
and in tort law in particular.
In the context of the dichotomy, the decision in
Crimmins case is significant because the discourse in tort law has for a
long time remained a discourse in private law notwithstanding the
fact that for
at least two decades tortious obligations had been enforced against public
authorities.
This paper is directed at critical evaluation of the High
Court’s decision in Crimmins
case[2] in the conceptual context of
the public/private law dichotomy. This paper is divided into four parts. The
first part explores the
public/private law dichotomy in an historical setting.
The second part discusses the dissolution of the policy/operational factors
distinction against the background of the public/private law dichotomy. This is
done by recourse to a particular trend of legal
theory that surmounts these
distinctions, and in the context of the specific case law. The final part
commences with a review of
the case law prior to Crimmins case. This
provides the launching ground to an examination of the extent to which the
distinction has been overcome in Crimmins case and its implications for
the future decision making of the High Court.
The public/private law dichotomy draws a line between private law and
public law. Geoffrey Samuel notes that the Romans categorised
law in terms of
relationships between person and person, person and a thing and person and the
state[3], but that the common law
system has taken on these distinctions at a formal level rather than a
substantive level.[4] The
public/private law dichotomy is more a matter of orthodox legal
history[5] than of the underlying
substantive theories of rights existing between different classes of
‘person’. He argues that
the distinction should be introduced when
considering obligations of the state to
individuals.[6] The writer agrees
with the approach of distinguishing between relationships in which the qualities
of the parties affect the duty
owed. However, it is suggested that this
approach is not inconsistent with viewing the public/private law dichotomy as
untenable.
It will also be argued that the relationship between a statutory
authority and an individual should be approached at the substantial
level as a
relationship existing between the state and the individual rather than an
individual and an individual. This approach
overcomes the difficulties created
by treating the public/private law dichotomy as a real distinction whilst
acknowledging the importance
of the particular type of relationship between the
parties. The writer will also contend that the public/private law dichotomy
should
be formally dissolved, as it is a distinction without meaning. It will
be argued that in the area of liability of statutory authorities
in negligence
that the relationship between individual and state should be focussed upon at
the duty and standard stage, thus allowing
for the incorporation of relevant
public policy considerations, peculiar to the defendant as a public authority
whilst obviating
the necessity of adherence to the public/private law dichotomy.
The public policy considerations peculiar to statutory authorities as
defendants include that such bodies provide a service to the
community on a not
for profit basis and that the authority should act in the interests of the
public. The writer considers that
the question of whether a duty of care is
owed by a statutory authority should be viewed from a combination of the rule
based and
principle based approaches described by Prue
Vines.[7] She states that McHugh J
seems to be searching for a form of incrementalism, drawn from a rule based
approach, but which allows
scope for
principle.[8] The writer believes that
this could be achieved by using a system of categories of cases in which sets of
principles are used. The
establishment of new cases would not be incremental
but could be created by an examination of applicable principles by analogous
categories not from a factual but from a principled perspective. To that extent,
the writer is of the view that the relationship
between the state and individual
is one in its own category, which could easily include other private
organizations that perform
the same functions or are imbued with the same powers
as a statutory authority. It is a relationship which takes on a combination
of
broad public policy considerations, some of which are referred to above, and
narrower internal policy considerations of the particular
statutory authority.
The relationship giving rise to internal policy concerns is to some extent those
raised by Mason J in Sutherland Shire Council v
Heyman[9] including financial,
social and political restraints. This category would be shared with the type of
private organizations mentioned
above which shall be referred to as
‘equivalent private organisations’. It should be remembered that
the internal policy
considerations arise as a result of broader public policy
considerations including that the authority act in the interests of the
public,
that the authority will generally provide a service to the community as a whole
or part on a not for profit basis. This
last consideration will no doubt be the
subject of discussion where the organization is private rather than public. The
broad public
policy considerations are those that are referred to in stage 6 and
to some extent those included in stage 5 of McHugh J’s
6 stage test in
Crimmins case.[10] The
internal policy considerations form part of those referred to in stage 5 of the
6 stage test. A detailed discussion of the internal
policy considerations and
broader public policy considerations can be found in Part II C, “The
decline of the conceptual distinction
and the judicial intransigence in
Australia”.
When considering the public/private law dichotomy at
a high level of generality it is clear that the dichotomy is inappropriate.
The
distinction in its present form appears to be based upon a belief that to begin
with, due to the separation of powers between
the executive and the judiciary
and the legislature and the judiciary, particularly in Crimmins case,
there should also be a separation of legal duties. The distinction between the
judiciary, and, the executive and legislature
has been insisted upon in
constitutional law.[11] However, as
Imtiaz Omar notes, the High Court has found it necessary to develop exceptions
to the doctrine by characterizing certain
actions of the Court itself as
administrative rather than
judicial.[12] In the administrative
law arena the distinction between judicial power and the executive power has
been quite obviously blurred
in recent times. A good example arises in
Public Service Association of SA v Federated Clerks Union of Australia, South
Australian Branch,[13] a
case involving jurisdictional error. The High Court, although formally
upholding the narrow doctrine of jurisdictional error, allowed
a review of the
substantive decision of a member of the executive. The Court did not openly
acknowledge the merging of jurisdictional
and non-jurisdictional error as in
Anisminic Ltd v Foreign Compensation
Commission,[14] a United Kingdom
decision; however the reasons for the decision in both cases were very similar
as were the outcomes.
In the area of torts the distinction between the
judiciary and the legislature or the executive is much less significant. The
tort
of misfeasance in a public office is a very specific example of the overlap
between the powers of the executive and the judiciary
whereby the powers of the
executive are not sacrosanct when they are exercised with the object of injuring
a member of the
public.[15]
Similarly, in the
law of negligence, there is a clear overlap between the executive and the
judiciary as outlined in Sutherland Shire Council v
Heyman.[16] Heyman’s
case allowed a duty to be owed by a statutory authority provided there were
certain limitations that would uphold the public/private
dichotomy. To this
extent there is an attempt at creating a distinction between what is perceived
as public and private law. It
is quite clear from Mason J’s judgment that
a duty would not exist in cases where it was considered the statutory authority
needed to be protected when a policy decision had been made by the statutory
authority. The underlying policy reasons for the policy/operational
distinction, which is simply a mechanism to enforce the public/private
dichotomy, includes the separation of
powers.[17] Other considerations
include that a statutory authority is providing a service for the entire
community and that it should simply
be left to do its job for the benefit of the
community and that there are financial constraints on large bodies that perform
a service
for the entire community. These considerations can be dealt with by
the standard taking on a more subjective quality. McHugh J
in Crimmins
case has suggested such an approach, which is endorsed by the writer above in
the context of the relationship between a statutory
authority and an
individual.
A further argument related to the separation of powers put
forward by Waye[18] is that the
courts do not have the ability, in adversarial proceedings, of balancing
different interests because judges, by virtue
of their legal training and
experience, are not qualified to do
so.[19] Since the balancing of
competing public policy considerations is often the overriding concern of the
courts in determining whether
a duty is owed in novel negligence cases, it is
clearly inappropriate to argue the courts' inability to do precisely
that.[20]
Susan Kneebone
challenges the doctrine of separation of powers on a number of different bases
including that it is more accurate to
consider a "pluralist" society in which
the executive controls the
Parliament.[21] She also refers to
the closely linked argument that linear responsibility of a sovereign
Parliament[22] from the executive to
the individual is untenable because it assumes a distinction between legal and
political responsibility.[23]
Kneebone also contends that the idea of a clear separation between public and
private duties is undermined by the changing role
of the public
sector.[24] This argument is
important in light of one of the arguments in this paper that the relationship
that gives rise to a duty of care
by a statutory authority should be viewed as
one between the state and an individual. It leads us to a related issue which
is mentioned
in this Part above, namely, which bodies can be described as "the
state" (do they include large corporations?) and what attributes
does "the
state" have? As stated above, in the writer’s opinion private
organizations that exercise powers that had previously
been exercised by
statutory bodies because they provided, or had the power to provide a service to
the community, should be categorised
in the same manner as statutory authorities
are in negligence actions. This adds weight to the argument that the
private/public
law dichotomy be dissolved.
Following on from the line of
argument put forward by Kneebone that the separation of powers is untenable
because it assumes a distinction
between legal and political responsibility, it
is trite to say that public policy considerations continue to underlie and
instruct
each element of negligence. Justice Deane's seminal judgment in
Sutherland Shire Council v Heyman, clearly states that public policy
considerations must be taken into consideration when determining whether a duty
of care exists
in negligence.[25]
Kirby J’s 3 stage test, lists both proximity factors (being the
2nd stage) and the fairness and justice test (being the
3rd stage) as being integral to the determination of duty in
negligence cases.[26] Both stages
are directly affected by public policy considerations, that is to say,
considerations of policy which are public in
nature; indicating an error in
considering public law as distinct from private.
Justice Gummow states in
Perre v Apand Pty Ltd[27]
that fault is the basis of the law of negligence. This way of categorizing tort
is of course deeply historically entrenched. Fault
is a moral concept, which
particularly in today’s society, which is so economically driven,
encompasses considerations of how
best to distribute wealth. Therefore, an
example of a public policy consideration affecting moral values occurs where the
public
policy consideration, being the appropriate distribution of wealth,
affects the moral value of fault. This of course is due to the
fact that public
policy considerations are indications of the generally held beliefs of what is
best for a society and such beliefs
must affect the application of principles in
a society, particularly moral principles. Therefore public policy
considerations, like
all other areas of law, are entwined with what is
considered by some to be the very essence of the law of negligence. To this
extent
also, a public consideration of policy is entwined with what is
erroneously described as “private” law.
A reason given by
McHugh J for the distinction between public and private law in Crimmins
case is that the ‘rationales’ of duty in the two areas are quite
different.[28] Flowing from the
above arguments, a contention to reject this notion is that public policy
considerations inform rules of law and
principles of law in every area of law.
Being considerations of public policy it cannot be said that private law is
devoid of considerations
of public law. These policy considerations are not
static over time but they can be equally applicable to both private and public
law. Public policy considerations are dictated by moral, social, political and
economic factors existing in a society. The choice
of which public policy
consideration is applicable to a question of law may differ depending upon the
circumstances of the case,
but they exist to affect each and every principle and
rule of law. To that extent it would be erroneous to suggest that there is
a
fundamental difference between private and public law.
Public law has
historically had some different purposes to private law. However, the
development of tort law from general wrongs
in the community arose out of an
area in which criminal law and wrongs were very closely linked to the point of
overlapping in many
cases. The more recent examples given above of the obvious
overlaps between the two areas, tend to suggest that the differences
exist in
both (1) the types of relationships that exist between the parties, and, (2) the
types of public policy considerations that
more commonly affect public and
private law matters. This holds true particularly in the area of the law of
obligations and even
more so in the area of tort law. An example arises in the
exclusionary rule in Cattle v Stockton Waterworks
Co[29] in which a duty of care
was excluded in pure economic loss cases. The reasoning behind such a rule
could not be said to relate only
to an individual’s rights against another
individual. The rule quite clearly had consequences that related to the
distribution
of wealth within a community, not just the rights of one individual
against another.
Another related argument against McHugh J’s
differing ‘rationales’ approach is that if policy considerations
affect
principles of law and they are common to all laws then the argument that
the rationales of private and public law are different must
fail, at least at a
high level of abstraction. There may be historical differences, but these have
been surmounted in other areas
of law. For example there are instances in which
the duties owed in common law and equity have been held to be
synonymous.[30] Such examples
provide clear evidence that areas of law that are historically different will
eventually merge where actions fall
within the same category within a taxonomic
model. The approach of distinguishing between areas of law, which have
historically
been regarded as different, in many cases without any adherence to
substantive differences is undergoing redirection when viewed
from a taxonomical
perspective. Birks argues that equitable and common law wrongs or torts should
be viewed together.[31] If these two
different areas of law can be regarded as overlapping simply on the basis of the
identification of a secondary obligation
the same taxonomy should be applicable
to situations in which a secondary obligation exists. This is so even when the
relationship
exists between the state and an individual without difficulties
created by an implausible distinction between private and public
law. Further
weight can be given to the dissolution of the overall private/public law
dichotomy when it is recognised that many
of the public policy considerations
that affect decisions in both private and public law are the same. The example
given above of
the reason underlying the exclusionary rule is a case in point.
Recognition of this fact does not by itself deal with the problem.
The
longstanding acknowledgment of the dichotomy provides a launching ground to
dealing with the private/public law dichotomy as
differences of relationship
between parties as being that of state and individual. The difference between
the private and public
law bodies gives rise to a difference in relationship
between the parties, which should be taken into consideration by the use of
public policy considerations. The differing public policy and internal policy
considerations, which apply to statutory authorities
and equivalent private
organizations, are mentioned above. The effect upon the law of negligence is
also considered.
The historical distinction between private and public
law indicates not two distinct bodies of law but a three dimensional web of
law,
directly affected by public policy considerations in which the relationship
between the parties will be indicative of separate
points on the web in which
many of the same public policy considerations are applicable. A change in
emphasis from an all or nothing
approach to whether a duty is owed put forward
by Mason J in Sutherland Shire Council v Heyman, to an approach using a
sliding scale was used by Gaudron and McHugh JJ in Crimmins case. Such a
move towards differences of degree may pave the way for the dissolution of the
public/private law dichotomy.
Although Morton Horwitz’s points are
made in the context of United States constitutional law, he further illustrates
the inappropriateness
of the public/private distinction. He notes that the word
‘private’ means different things to different people, particularly
those from different political
persuasions.[32] People who are
politically conservative might consider that contraception, abortion and the
ideal of a heterosexual marriage are
public matters, whereas the market place is
definitely a private area. Liberal minded people on the other hand often
believe that
the sexual activities of consenting adults are not a matter for
regulation, but argue that the equitable distribution of resources
should be.
It can be argued that if the words public and private cannot be defined that
that is a reflection that the dichotomy
is untenable. In the alternative,
whilst it may seem contradictory to suggest that public actions are less open to
regulation by
law, because private actions are generally thought to be less open
to regulation, this stems from the fact that public bodies are
regulated more
strictly in the area of administrative law. As an implicit return for that
strictness in administrative law the courts
have been less strict in negligence
cases.
Horwitz explains that jurists and judges in the 1920’s and
1930’s ‘ridiculed the invisible-hand premise behind any
assumption
that private law could be neutral and
apolitical’.[33] The same
argument applies with equal force to the dichotomy between private and public
law. It is quite ludicrous that the courts
have not acknowledged that this
shallow dichotomy is riddled with contradictions and that in fact it is
untenable. The greatest
evidence of the shallowness of the dichotomy is the
simple fact that all concepts or notions of law grow in the society in which
they were forged. Therefore all laws are affected by subjective political,
social and economic beliefs. There is no segregation
of the underlying public
policy considerations between private and public law and there can never be.
The most that can be said
is that the relationship between state and individual
is at a different point in the three dimensional web to that of individual
and
individual with many of the strands of the web being shared by each. To be more
specific, the policy considerations, which affect
the positioning of the
relationship between a statutory body and an individual, can be plotted as
different to the relationship between
two individuals. The difference between a
statutory body and an individual will be made up of a number of factors which
might be
divided between those internal to the body itself and those which are
more generally related to the law. The former shall be referred
to as policy
considerations and the latter as public policy considerations. The policy
considerations cause the cases in which the
statutory authority or equivalent
private organization is a defendant to be plotted in a “different
place” to cases in
which both the plaintiff and defendant are individuals.
However, as noted below in Part II C, “The decline of the Conceptual
distinction and judicial intransigence in Australia”, broader public
policy considerations underlie these narrower internal
policy
considerations.
Acknowledging the difference between obligations owed by
the state to individuals and by individuals to other individuals does not
contradict the rejection of the private/public law distinction. The common law
develops by considering the facts of different cases
and the relationship
between parties is definitive. This is particularly so in the law of negligence
where the factors upon which
the relationship between the parties is based
determines whether a duty is owed.
At this point it should be noted
that Samuel states that the law of remedies must be shown to respond to the
relationships between
parties;[34]
however, recent theories on the taxonomy of obligations leans towards
identifying causal factors rather than their effect as characterizing
different
obligations.[35] For example, Peter
Birks outlines a classification of obligations which consists of wrongs,
consents, unjust enrichment and other
events.[36] According to
Birks’ taxonomy of the common law of obligations dealing with wrongs or
torts, a wrong consists of an infringement
of a right. All other types of
obligations are defined in terms of rights rather than remedies. On the other
hand, Ernest Weinrib
argues that the law of obligations should be classified
with reference to corrective
justice.[37] Even though this
taxonomy is not dependent on rights it demonstrates a move away from a remedies
based approach to taxonomy of obligations.
The reasons given above
support the argument that the private/public dichotomy is a fictional
distinction not a real distinction.
That being the case, the focus of the
courts when considering the liability of statutory authorities in negligence
should be upon
the relationship between the state and an individual at the duty
and standard stage. In order for this to occur the courts must
recognise that
the dichotomy is dissolved. Justice McHugh has focussed more closely on the
relationship between the parties in Crimmins
case,[38] but unfortunately has not
acknowledged the dissolution of the dichotomy. Unless the dissolution of the
dichotomy is acknowledged
the development of law in this area will be hampered
by irrelevant principles. The discussion in the second part of this article
places the private/public dichotomy in the second stage of its collapse.
The policy/operational factors distinction put forward by Mason J in
Sutherland Shire Council v
Heyman[39] was a means of
allowing a duty to be owed whilst limiting the duty of care owed in negligence
by statutory authorities. The distinction
was used to limit the duty of care in
respect of statutory authorities as a means of requiring an authority to owe a
duty in limited
circumstances. This was intended to overcome the problem of
allowing a public authority to owe a private law duty. It assumed a
distinction
between private and public law. Justice Mason said of the
distinction:
The distinction between policy and operational factors is
not easy to formulate, but the dividing line between them will be observed
if we
recognise that a public authority is under no duty of care in relation to
decisions which involve or are dictated by financial,
economic, social or
political factors or constraints. Thus budgetary allocations and the
constraints which they entail in terms
of allocation of resources cannot be made
the subject of a duty of care. But it may be otherwise when the courts are
called upon
to apply a standard of care to action or inaction that is merely the
product of administrative direction, expert or professional
opinion, technical
standards or general standards of
reasonableness.[40]
The
policy/operational factors distinction is grounded in an assumption that there
is a distinction between private and public law
or activities and that when
there is an overlap - in this case by virtue of a public body owing a private
duty - that certain actions
of the public body are not tortious. This is so
because allowing a duty to be owed would fail to recognise the separation of
powers
between the executive and the judiciary. The other reason is that in some
circumstances the imposition of a duty of care would lead
to the inability of a
public body to continue to operate with the purpose of providing a public
benefit.
In order to determine whether the policy/operational factors distinction
is worthwhile, the utility of the public/private law dichotomy
should also be
examined. It is useful to consider the distinction at a fairly high level of
abstraction so as to encompass the principles
underlying the distinction.
Duncan Kennedy has considered the decline of the public/private law dichotomy in
this way.[41] He argues that there
are six stages of decline in a legal distinction beginning with ‘Hard
Cases with Large Stakes’.
He suggests that hard cases encourage people to
think and argue over a distinction.
‘Hard cases’ can lead to
‘The Development of Intermediate Terms’, the second stage. These
can arise when
there are situations in which the distinction is only relevant in
certain circumstances or where there are shared characteristics.
Kennedy argues
that this applies to cases in which a statutory authority is engaged in private
activities.
Kennedy describes the third stage as ‘Collapse’.
This occurs when:
[Y]ou say that something is X if it has property
A, and that is it Y if it has property B. But everything
has property A, so everything is X, and the distinction between
X and Y has
collapsed.[42]
He cites
Morris Cohen’s argument that because property rights and contract rights
are enforced by the state they should be considered
as delegated public powers
that should be subject to rules of public accountability as opposed to private
accountability that we
usually associate with property and
contract.[43]
Kennedy’s fourth stage is ‘Continuumization’ in which
it is acknowledged that entities are not wholly one thing
or another and
therefore everything should be ranged on a continuum basis. He states
that:
People who believe in continua tend to explain how they go about
deciding what legal response is appropriate for a given institution
by listing
‘factors’ that ‘cut’ one way or the other and must be
‘balanced’. The imagery of
balancing fits the imagery of continua
because balancing is an affair of fine quantitative ‘absolutes’ that
were discredited
during the stage of
Collapse.[44]
The
‘Stereotypification’ stage and the ‘Loopification’ stage
are the final stages. Stereotypification occurs
where people manipulate the
rules and factors that operate to determine where a case fits on the continua.
The final stage is the
stage of realization that the distinction is not a
distinction.
A good example of stage 1 of the dissolution ‘Hard Cases with Large
Stakes’ of the distinction in relation to both the
public/private
dichotomy and the policy/operational factors distinction, may be found in
Sutherland Shire Council v
Heyman[45] itself. Mason
J’s judgment in this case was the seminal judgment on duty of care of a
statutory authority in negligence.
'The Development of Intermediate
Terms' being the second stage of dissolution, in which there are shared
characteristics, is exemplified
if we set aside the policy/operational factors
distinction for a moment and look to the distinction between private and public
law.
The Justices’ decisions in Crimmins v Stevedoring Industry
Finance Committee[46] are an
example of the second stage. Justice McHugh states that the duty of care is
owed in private law whilst acknowledging that
there are differences between
public authorities and private persons in his six stage test for
duty,[47] which I will refer to as
the 6 stage test for duty. The fifth test for duty is whether the duty would
impose liability with regard
to the core policy-making and quasi-legislative
functions of the public authority. Such an approach resists considering all law
as being neither private nor public, but nevertheless retains the distinction
granting immunity to a public authority from liability
in private law, only in
certain circumstances, being when the fifth test for duty is applicable.
Justice Gaudron in Crimmins case also agrees with Deane J’s
judgment in Heyman’s
Case[48] that a duty of care will
not be imposed where the actions taken by the statutory authority are in the
exercise of its policy-making
powers or functions of a quasi-legislative
character. She also believes that whilst there is a dichotomy between private
and public
law, consideration of the fact that a statutory authority may not
always owe a duty of care should be made. The underlying reasons
for this
consideration, relating to both the separation of powers and policy
considerations including that in some circumstances
the imposition of a duty of
care would lead to the inability of a public body to continue to operate with
the purpose of providing
a public benefit. These reasons are considerations of
public policy that obviously undermine the dichotomy.
The first reason,
(which the writer attributes to Gaudron J's approach, and which relates to the
separation of powers), is a public
law principle that Her Honour allows to
impinge upon a private law obligation giving rise to a shared characteristic.
Justices Gummow[49] and
Hayne also agree with Deane J’s approach of considering the exercise of
the quasi-legislative power and core policy-making
functions as excluding the
duty of care whilst distinguishing between private and public law. Once again
the underlying reasons
for the exclusion of the duty create a shared
characteristic between private and public law. The same comments can be made of
Callinan
J who has a similar approach to Gummow and Hayne JJ. Justice Kirby
also considers that where discretionary decisions are made this
will lead to the
exclusion of the duty of care whilst stating that there is a distinction between
private and public law.[50]
In short, the shared characteristics between private and public law are
firstly the existence of public policy considerations that
underlie all law.
Secondly, the fact that the courts are willing to entertain a public body owing
a private law duty, whilst at
the same time excluding liability when it is
perceived that it oversteps the public law doctrine of the separation of powers.
The third stage, being ‘Collapse’ has already played itself
out in respect of the policy/operational factors distinction
in the following
manner: A policy decision is one that relates to budgetary
restraints.[51] However, all
decisions can arguably relate to budgetary restraints at some
level.[52] Therefore, all decisions
can be characterised as policy decisions.
Fortunately Kennedy is talking
about legal distinctions when he outlines the fourth stage of dissolution being
‘Continuumization’
because such a system would doom to failure our
entire system of Tort Law! The policy/operational distinction has been hampered
by policy factors from the very beginning. Mason J described them in
Sutherland Shire Council v Heyman as ‘decisions which
involve or are dictated by financial, economic, social or political factors or
constraints’.[53] Mason J
described an all or nothing approach to duty. As Kneebone notes, the
policy/operational distinction related to justiciability
of the
courts.[54] The factors were never
intended to be placed upon a sliding scale.
Whilst Mason J’s
statement deals largely with the internal policy considerations of the statutory
body itself it should be noted
that internal policy considerations are grounded
in wider public policy considerations such as the provision of services for the
community. In addition to this it can be argued that the seemingly internal
policy considerations are in fact wider public policy
considerations. For
example, in Romeo v Northern Territory Conservation
Foundation[55] Toohey and Gummow
JJ considered the natural beauty of an area when deciding whether it should be
fenced. Although this issue was
dealt with at the breach stage it is clear that
such a question could form part of a consideration of duty of care. If, for
example,
the area is one of great natural beauty this social consideration is
clearly a public policy consideration rather than an internal
policy
consideration. The writer submits that it would have been more appropriate to
deal with the issue of the natural beauty of
the park in Romeo’s
case at the duty stage because it is clearly a social/environmental matter. In
Goldman v Hargrave[56] Lord
Wilberforce held that the standard of care required of a land owner to prevent a
fire that he did not light spreading to other
properties is set according to
what is reasonable in the circumstances of the particular defendant. What is
reasonable entails an
examination of the defendant’s resources. The
public policy consideration at work here is one related to the redistribution
of
resources within the community. More specifically, that the resources of each
person shall provide a benchmark for their liability
when they are not
responsible for the initial action that creates the damage. It is submitted
that this consideration can be extended
to organisations that act in the
interests of the public particularly when they have a discretionary power that
they have omitted
(in fact) to exercise.
Arguably, the current approach,
of considering the duty of a statutory authority to some extent at the duty
stage and to some extent
at the standard/breach stage is more greatly affected
by a sliding scale of factors than the ‘all or nothing’ approach
favoured by Mason J. Justice McHugh’s approach entails a consideration of
the type of activity that the authority is entering
into in stage five of the
sixfold approach to duty.[57] He
also appears to assert that it is necessary to treat a statutory authority in a
more subjective sense. It is the inconsistency
between the abolition of the
policy/operational factors distinction in light of their interconnectedness and
the persistent retention
of the private/public law distinction which leads me to
believe that we are at the ‘Continuumization’ stage of the
dissolution
of the policy/operational factors distinction. Until the High Court
acknowledges the inconsistency between stating that the policy/operational
factors distinction does not exist, whilst retaining the public/private law
dichotomy the dissolution of the policy/operational factors
distinction cannot
dissolve beyond the ‘Continuumization’ stage.
It is likely
that we will not approach the final stage with the policy/operational factors
distinction until we approach the same
stage with the public/private law
dichotomy. This is because the underlying basis for the distinction is the
public/private law
dichotomy. It is submitted that we are only one step removed
from the ‘Loopification’ stage with respect to the tort
of
negligence since the practical framework for abolition of the distinction is
already established. This is so even though the
underlying arguments in favour
of the abolition of the distinction at a higher level of abstraction have not
been applied to the
framework.
The third part of this article will
consider the recent history of the duty of care owed by statutory authorities in
Australia and
the decisions in Crimmins v Stevedoring Industry Finance
Committee[58] and provide
a means by which to put our best foot forward without the distraction of the
policy/operational factors distinction or
the public/private law
dichotomy.
The starting point for liability in negligence of a statutory authority is
arguably Mersey Docks & Harbour Board Trustees v
Gibbs.[59] Justice Blackburn
argued that a public authority is liable under the same principles as an
individual where the defendant was conducting
an activity analogous to a private
individual. Susan Kneebone argues that this is a formulation of the 'basic
rule' that ‘public
authorities are liable under the same principles that
apply to private
individuals’.[60] Kneebone
argues that the rule should not be used as a means of protecting statutory
authorities from liability but that that is
what happened in the proceeding
years until Anns v Merton London Borough
Council[61].[62]
She argues that the courts used the relationship between the distinction between
acts and omissions, and, the existence of duties
as opposed to powers of a
statutory authority in order to limit the liability of statutory authorities.
She argues that this was
a reflection of the competing policy considerations
involved in balancing efficiency and thrift. Kneebone states:
The public
character of the defendant was relevant - not for policy immunity reasons, but
because it indicated the ability of the
defendant to avoid the loss,
particularly in situations where by its conduct it had put itself in a position
to do so, such as by
being in control of a public place or by creating a
situation of danger. The courts had forgotten the simple message of Blackburn
J's opinion in Mersey Docks that there was no public interest immunity in
favour of public authorities in such cases. The conferral of a discretionary
power
could lead to a positive obligation to exercise the power so as to prevent
harm, as Lord Wilberforce recognised in Anns v Merton London Borough
Council.[63]
This
argument is very forceful. However, it would be inappropriate to create a
blanket rule to rule out policy arguments (that Kneebone
describes as public
interest immunity), as there may be situations in which it is in the overriding
interests of the public to grant
immunity to a public authority. The writer
agrees with Kneebone that such an immunity should not be grounded in
considerations of
whether the statutory authority owes a statutory duty or
simply has a discretion as to whether to exercise a power. This can be an
important consideration when it impinges upon the issue of whether the statutory
authority is failing to exercise a positive duty
to act.
In Anns v
Merton London Borough
Council,[64] Lord Wilberforce
propounded a two stage test for liability in negligence, including the liability
of statutory authorities. First,
whether damage was reasonably foreseeable and
secondly whether there were any considerations, which might limit the scope of
the
duty or, the class of persons to whom a duty might be owed. This second
test is simply a consideration of whether there are any
public policy
considerations which might negate the duty. Kneebone comments that this
approach is ‘a sensible attempt to adjust
the duty of care principle to
the special position of public authorities exercising statutory powers as it
enables the fact that
an exercise of such power is in issue to be taken directly
into account’.[65] Although
Kneebone clearly does not argue for the complete deconstruction of the
public/private dichotomy, nor does she argue that
her ‘basic rule’
is anything but a public authority owing the same duties as a private individual
owes under a private
law duty, she does focus very closely on the relationship
between a public authority and an individual. It should be noted, however,
that
she is clearly considering the private law duty in light of its intersection
with administrative law. Kneebone’s approach
of focussing upon the
relationship between the individual and the state, even against the background
of the public/private law dichotomy
which the writer does not endorse, is
welcome.
In Sutherland Shire Council v
Heyman[66] Mason J delivered his
seminal judgment on the liability of statutory authorities. He held that the
distinction between statutory
duties and powers, closely related to the
distinction between misfeasance and non-feasance, is not necessarily helpful in
determining
whether a duty is owed because the powers granted to a statutory
authority are conferred to enable the statutory authority to carry
out its
statutory objects.[67] Such a
distinction is of course relevant to the policy/operational factors distinction
because in the exercise of the powers or
duties the statutory authority will
have to make decisions about how to exercise the statutory
powers.[68] Justice Mason considers
that a statutory authority can place itself in a position in which it owes a
duty of care arising simply
out of the general dependence on an authority. This
will occur where the defendant does not place itself in a position in which
it
will owe a positive duty or where the plaintiff has not acted to his or her
detriment.[69] This has become
known as the doctrine of general reliance and it has been subsequently rejected
by Brennan CJ, Gummow and Kirby
JJ in Pyrenees Shire Council v
Day[70] and in Crimmins
case.[71] The doctrine of general
reliance, which created a duty in situations in which there was an omission by a
statutory authority, was
superseded by considerations of vulnerability,
knowledge and control in Pyrenees Shire Council v
Day[72] and in
Crimmins case.[73] Justice
McHugh upholds the doctrine of general reliance in Pyrenees Shire Council v
Day.[74] In Crimmins case
His Honour continues to uphold the
doctrine.[75] Justice McHugh
considers that knowledge, vulnerability and control are necessary factors to
proving a duty of care.[76] He
explains that the doctrine of general reliance was a means by which to test for
vulnerability.[77] Justice Gaudron
also notes that the factors of vulnerability, control and knowledge appear to
underpin the doctrine of general reliance
and have become commonly used by the
courts as indicia of a duty of
care.[78]
Justice Mason held
that there should be a distinction between policy and operational factors in
Sutherland Shire Council v
Heyman.[79] He
states:
The distinction between policy and operational factors is not
easy to formulate, but the dividing line between them will be observed
if we
recognise that a public authority is under no duty of care in relation to
decisions which involve or are dictated by financial,
economic, social or
political factors or
constraints.[80]
A different
way of ensuring the consideration of public policy matters relating to the fact
that a duty is owed by a a public authority
was posed by Deane J in
Sutherland Shire Council v
Heyman[81] where he
held:
The existence of liability on the part of a public governmental
body to private individuals under those principles will commonly,
as a matter of
assumed legislative intent, be precluded in cases where what is involved are
actions taken in the exercise of policy-making
powers and functions of a
quasi-legislative
character.[82]
Kneebone
argues that both Mason and Deane JJ use, inter alia, the
‘control-reliance’ method of categorising the duty owed
by the
public authority,[83] and that this
tends to be the most appropriate manner in which her ‘basic-rule’
takes into account the ‘public
nature of the powers which public
authorities exercise’.[84]
She also notes that Mason J uses the policy/operational distinction, which is a
form of justiciability categorisation. In the writer's
opinion, Deane J also
does so, but to a more limited extent. The writer agrees with Kneebone that the
control-reliance method of
approaching duty is generally a good way of taking
into consideration the fact that the defendant is a public authority. This is
built upon by the court in both Pyrenees Shire Council v Day and
Crimmins case as the control, knowledge and vulnerability factors.
However, in the writer’s opinion, underlying the importance of Kneebone's
preferred deviation from the ‘basic rule’ is the fact that the
relationship between the parties should be more precisely
defined as one of
state and individual. The untenability of the public/private law dichotomy is
the reason for the limited usefulness
of the policy/operational factors
distinction. Unfortunately, Kneebone’s adherence to the dichotomy, has
the effect of undermining
the ‘basic rule’ itself.
The cases
in which the statutory authority is negligent in the provision of a duty of care
as an occupier are fairly settled. In
Nagle v Rottnest Island
Authority[85] it was held
that for an entrant to be owed a duty of care she or he must be a lawful
entrant, the statutory authority and occupier
must be under a statutory duty to
manage and control the land for the public, and it must have encouraged entrants
to use the land
for the purpose which caused the harm. In Romeo v Northern
Territory Conservation
Foundation[86] Justices Toohey
and Gummow considered the wider public policy consideration of maintaining an
area of natural beauty when determining
the standard of care owed and whether it
had been breached. The majority of the court decided that there was no breach
of any duty
which might be owed to the entrant and therefore did not deal with
the question of the policy/operational factors distinction raised
by the
defendant.
Both Mason J's and Deane J's approaches are discussed in the
following section of this paper. In particular, Deane J's decision in
Sutherland Shire Council v
Heyman[87] is relied upon by the
Justices in Crimmins case. The writer has not included a separate
discussion of the decision in Pyrenees Shire Council v
Day[88] because the
composition of the High Court has changed and because those Justices who remain
on the bench have followed their previous
approach.[89]
Between April 1961 and November 1965 Crimmins was a registered waterside
worker. He loaded and unloaded asbestos cargo during that
time at the Port of
Melbourne. The plaintiff died of mesothelioma in 1998 which he contracted by
inhaling asbestos fibres. He argued
that the Authority owed him a duty of care
to prevent injury to him as a registered waterside worker.
The defendant
Committee succeeded the Australian Stevedoring Industry Authority. The
Authority was required to ‘perform its
functions, and exercise its
powers...with a view to securing the expeditious, safe and efficient performance
of stevedoring operations’
pursuant to s 8 of the Stevedoring Industry
Act 1956 (Cth) (the Act). Pursuant to s 17 of the Act the Authority had
functions including regulating performance of stevedoring operations, regulating
the conduct of waterside workers,
investigating and encouraging means of
improving the safety of stevedoring operations, encouraging safe working in
stevedoring operations.
A rather circular rejoinder to these far reaching
powers was contained in s 17(2) which stated that the Authority should not
exercise
its powers except to the extent essential to the proper performance of
that function. On the other hand, where the Authority decided
to exercise its
powers it could make orders having the force of law and do all things as it see
fit pursuant to s 18 of the Act.
The workers were assigned work by the
Authority and paid by the Authority. The worker was subject to the authority
and direction
of the employer once assigned to a certain employer.
It was held by the majority, Gleeson CJ, Gaudron, McHugh, Kirby and
Callinan JJ, that a duty was owed by the Authority, Gummow and
Hayne JJ
dissenting. It was also held that the Committee was liable for the inaction of
the Authority by a majority constituted
by Gleeson CJ, Gaudron, McHugh, Kirby
and Callinan JJ, (Gummow and Hayne JJ dissenting).
The general thrust
of the decision having been dealt with, we will consider the matters of
relevance to the policy/operational factors
distinction and the public/private
law dichotomy.
Justice McHugh, with whom Gleeson CJ agrees, enters the fray by
criticizing Lord Hoffman in Stovin v
Wise.[90] Lord Hoffman states
that for a duty to be owed there must be a public law duty to act and
exceptional grounds for holding the policy
of the statute requires compensation
to be paid to the loss sufferer because the power was not
exercised.[91] Justice McHugh
argues that private law should not be affected by public law concepts of duty
because public and private law are
informed by differing
rationales[92] showing that he, like
the other members of the High Court, believe that there is a real distinction
between private and public law.
Specific objections to McHugh J’s
argument have already been made in Part I. Broadly, they are that public policy
considerations
affect and apply equally to all areas of law and to that extent
it is erroneous to consider public and private law as separate because
both
areas are affected by considerations of policy which are public.
In the
writer’s opinion it is correct to say that the law forms a three
dimensional web which is directly affected by public
policy considerations and
in which the relationship between the parties will be indicative of separate
points of the web in which
many of the same public policy considerations are
applicable. Although the reasoning behind McHugh J’s judgment clearly
does
not bear this out, his approach is consistent with the three dimensional
web approach to public and private law. It also illustrates
a distinction
between general public policy considerations in stage 6 of the 6 stage test and
the combination of public policy considerations
and internal policy
considerations in stage 5 of the 6 stage test. However, it should be noted that
the underlying bases for the
internal policy considerations lie in broader
public policy considerations. He contends that instead of the all or nothing
policy/operational
factors distinction that Deane J’s approach that
“core area” of policy making and quasi-legislative decisions should
be excused. This is consistent with the three dimensional web approach to
replacing the public/private law dichotomy discussed in
Part I.
Whilst
McHugh J’s approach appears to be narrow, it is not as narrow as the view
put forward by Gaudron J. Justice Gaudron
considers that interpretation of the
intention of a statute is necessary to determine whether a duty is owed.
Gaudron J states that
the legislation that governs the powers and duties of the
authority may give rise to an inference that it was intended that the common
law
should be excluded in whole or in
part.[93] Justice Gummow takes a
narrow approach to determining whether a duty of care is owed. He argues that
the starting point must be
a determination of the scope of operation of the
statute.[94] The statute may
establish relationships between the statute and common law that were previously
unknown to the common law.[95] He
argues that in Crimmins case the statute appears to be concerned with
public administration and not the creation of private
rights.[96] This approach is very
similar to the approach put forward by Deane J and Gaudron
J.[97] Both Gummow J, and Deane and
Gaudron JJ’s approaches involve determining whether or not interpreting
the intention of a statute
creates rights and both distinguish between public
law and private law. However, Gummow J also states that by considering the
duties
and powers of an authority created by statute, relationships may arise
which are analogous to relationships which arise in common
law.[98] This is of course not the
same as simply using the statute to divine implications from it. Whilst being
more practical and more
easily applied, this approach very clearly distinguishes
between private and public law. Ironically, Justice Gummow's approach is
not as
easily modified as Gaudron J’s to a position of recognising the
untenability of the public/private law dichotomy because
it relies more heavily
upon the dichotomy. Justice Hayne follows Gummow J’s approach of drawing
analogies between the statutory
function of the authority and established common
law duties.
According to Callinan J the functions and powers of
the Authority ‘modify and mould, and indicate the common law principles
which may be applied to the respondent which otherwise would have an unfettered
application to it’.[99]
This approach is similar to the analogy approach put forward by Gummow and Hayne
JJ. It does not distinguish itself by its emphasis
upon the relationship
between state and individual and therefore should not be preferred as an
approach to determining whether a
statutory authority owes a duty of care.
Justice Kirby notes that the law of negligence is historically different
from public law but that both common law and public law give
rise to remedies
based upon the same subject matter being the meaning and operation of the
statute and its enforcement. According
to Kirby J the test of what the
Parliament ‘intended’ is a
fiction.[100] The writer agrees.
However, as Kirby J states, the laws have been developed from different
considerations. He notes that the purpose
of negligence is to obtain
compensation for a breach of a duty of care to the individual and not, as with
public law, to ensure the
performance of a statutory authority in the
future.[101] In the
writer’s opinion the better approach remains that of McHugh
J.
According to Kirby J his approach is similar to that of Gummow J. It
does appear to be to the extent that they both interpret the
meaning of the
statute and both consider whether there are duties owed by the statute analogous
to a common law duty of care. It
appears from Kirby J’s reliance upon
X (Minors) v Bedfordshire County
Council[102] that to a large
extent both Kirby J and Gummow J consider that some statutes create powers and
duties that relate to public administration
or the exercise of discretionary
decisions and not private rights. However Kirby J’s reliance upon
Bedforshire with its use of the words ‘discretionary
decision’ indicates some similarity with the policy/operational factors
distinction.
Unfortunately, Kirby J does not discuss the possible standard of
care of the Authority. His three stage test is similar to the
tests provided by
the other Justices in that it considers, albeit more pragmatically than the
others, reasonable foreseeability,
the relationship between the parties and any
relevant policy considerations. The simple fact that Kirby J considers whether
a duty
should be excluded for policy considerations pertaining to protection of
the public authority on public policy grounds does not make
a practical
difference to the outcome of his decision.
Justice Gaudron contends that the fact that the legislation that governs
the powers and duties of the authority may give rise to an
inference that it was
intended that the common law should be excluded, is why distinctions are drawn
between policy and operational
decisions. She refers to Deane J’s
judgment in Sutherland Shire Council v
Heyman[103] in which he
distinguishes between private and public law. After referring to Samuel’s
article[104] Deane J
states:
The existence of liability on the part of a public governmental
body to private individuals under those principles will commonly,
as a matter of
assumed legislative intent, be precluded in cases where what is involved are
actions taken in the exercise of the
policy-making powers and functions of a
quasi-legislative
character.[105]
It is clear
that even though Deane J has used the idea of public bodies owing a duty to
individuals as opposed to individuals owing
duties to other individuals in
accordance with Samuel’s approach, that he considers there is a strict
distinction between private
and public law. Justice Gaudron adopts Deane
J’s argument completely in Crimmins case and so falls into the same
trap as her learned friend of failing to follow through to the dissolution of
the distinction.
Although Kirby J’s judgment does not consider
the further issue of standard of care it is very similar to the other
Justices’
in that it assumes a divide between public and private law and
does not uphold the policy/operational factors distinction. Justice
Hayne also
incorporates Deane J’s approach of considering the exercise of the
quasi-legislative power of an authority as excluding
the duty of
care.[106]
Justice McHugh
rejects the policy/operational distinction on the grounds that many things done
by statutory authorities involve discretionary
and policy judgments about
resources and priorities.[107]
This point has been adverted to above as an example of ‘Collapse’ of
the policy/operational factors distinction in Part
II of this article.
Justice McHugh agrees with Deane J’s approach in Sutherland
Shire Council v
Heyman:[108]
It may be
that functions and powers which can be described as part of the ‘core
area’ of policy-making, or which are quasi-legislative
or regulatory in
nature, are not subject to a common law duty of
care.[109]
However, he
refers to Deane J’s approach as a ‘narrowly defined policy
exception’[110] and does not
refer to the earlier part of Deane J’s judgment in which he approaches the
duty as one in which the state owes
a duty to an individual. Justice McHugh
agrees with Stephen Todd[111] that
the fact that it is a statutory authority that owes a duty of care should be
dealt with at the breach
stage.[112] In other words, when
considering the standard of care, the fact that a public authority owes a duty
is taken into consideration.
To do so does allow the relationship between the
parties to remain important without either leaving such considerations simply as
a question of fact, or ignoring the relationship completely. To do the latter
would be to ignore the policy considerations arising
out of the duty. In view of
McHugh J’s reliance upon Todd’s approach to the liability of
statutory authorities, this
later statement is consistent with stating that the
duty is a duty owed by the state to an individual rendering it the preferred
approach to dealing with the liability of statutory authorities.
In
relation to the exercise of power by a statutory authority Gaudron J
states:
A public body or statutory authority only has those powers that
are conferred upon it. And it only has the resources with which it
is provided.
If the common law imposes a duty of care on a statutory authority in relation to
the exercise or non-exercise of its
powers or functions, it only imposes a duty
to take those steps that a reasonable authority with the same powers and
resources would
have taken in the circumstances in
question.[113]
This
statement evidences a clear step toward an approach in which the relationship
between state and individual, explained above in
Part I “The
Public/Private Law Dichotomy”, is important. The emphasis on the standard
of care is an important first
step towards focussing on the relationship between
the parties rather than the immunity of the statutory authority.
Justice McHugh's 6 stage test for
duty[114] can be categorised as a
"control-reliance" method with a small deviation to "policy-operation"
categorisation according to Kneebone's
method.[115] The writer considers
that the "policy-operation" category in test
5[116] of McHugh J's 6 stage test
is necessary to ensure that a public authority can operate in the best interests
of the public. In the
writer’s opinion this is the best approach for
dealing with the duty owed by statutory authorities to date. The failure to
thoroughly dissolve the public/private law dichotomy referred to in Part II C
“The Decline of the Conceptual Distinction and
Judicial Intransigence in
Australia”, however, remains a barrier to an academically honest approach
towards understanding the
law. If progress can be made towards a transparent
taxonomy of overlapping areas of law the development of case law will not
contain
the confusing anomalies that prevent the proper development of the law.
The writer considers that the law will develop properly
if the
policy/operational factors distinction and the public/private law dichotomy are
allowed to dissolve, as they should, and that
the emphasis in considering the
liability of statutory authorities in negligence should be focussed on the
relationship between the
state and individual.
This relationship
examined in Part I, “The Public/Private Law Dichotomy”, is one that
should be considered from a combination
of a principle based and a rule based
approach towards determining whether a duty of care exists. Such an approach
will reflect
the positioning of the relationship between a statutory body or
other equivalent private organizations and an individual as being
divided
between those policy considerations internal to the body and those more
generally related to the law. As a point of clarification
made in Part II, Part
C “The Decline of the Conceptual Intransigence in Australia”, some
of the policy considerations
seemingly internal to a statutory authority or
equivalent organization referred to by Mason J in Sutherland Shire Council v
Heyman[117] are clearly
public policy considerations in other negligence
cases.[118] Also, the internal
policy considerations are based upon broader public policy considerations in any
event. Such an approach is entirely
consistent with the current development of
the law of negligence that clearly upholds the importance of different
relationships.
In Crimmins v Stevedoring Industry Finance
Committee[119] the rejection
of the policy/operational factors distinction has not created a revolution in
the area of the duty of care owed by
statutory authorities. It has brought us
one step closer to the dissolution of the distinction. Until the High Court
acknowledges
that the public/private law dichotomy is untenable and deserves to
be completely rejected, the dissolution of the policy/operational
factors
distinction will not be complete. Fortunately, in Crimmins v Stevedoring
Industry Finance
Committee[120] McHugh J, with
whom Gleeson CJ agrees, and to a more limited extent Gaudron, Gummow, Kirby and
Hayne JJ, (by virtue of their agreement
with Deane J in Sutherland Shire
Council v Heyman[121]), have
created a general framework for the dissolution of the dichotomy. They have
done so by allowing the dichotomy to operate
upon the relationship between the
parties to an action rather than being a dichotomy lacking in direction.
The public/private law dichotomy is a formalistic distinction which
belies the fact that there are overlaps in private and public
law and that all
law is in fact guided by considerations of public policy. It evidences a
philosophy which has been criticized for
good reasons. However, it is not
inappropriate or contradictory to acknowledge the importance of public policy
considerations which
attach to the relationship between a statutory authority
and an individual as opposed to an individual and another individual. This
has
been done by McHugh J at both the duty stage, by the incorporation of Deane
J’s test in Sutherland Shire Council v
Heyman[122] and the standard
stage, by stating that the standard is that of a reasonable authority. In a
practical sense such an approach is
good and perhaps the practice will lead to
further judicial insights. However, the benefits of acknowledging that the
dichotomy
is fictional and that focussing on the relationship between the
parties at the duty and standard stage will allow for the incorporation
of
relevant public policy considerations applicable to the special relationship
between the state and individual must be recognised.
They will lead to an
approach unfetterd by vapid theories which will misdirect the development of the
law.
[*] LLB (QUT), Solicitor (QLD),
Legal Practitioner (Tas), Department of Health and Aged Care. This article was
researched and written
whilst the author was an Associate Lecturer, School of
Law, University of New England. The author would like to thank Prue Vines
from
UNSW, Imtiaz Omar, Cliff Baker and Marc Deegan from UNE for their valuable
advice.
[1] Crimmins v
Stevedoring Industry Finance Committee [1999] HCA 59; (2000) 167 ALR 1, (2000) 74 ALJR
1.
[2]
Ibid.
[3] G Samuel,
‘Public and Private Law: A Private Lawyer’s Response’ (1983)
46 The Modern Law Review at 558, 558-559. Samuel refers, inter alia, to
Jolowicz, Roman Foundations of Modern Law 1957, Chap. VIII and Buckland,
A Text-Book of Roman Law 3rd edn at
56-59.
[4] Samuel, supra n
3 at 563.
[5] See Samuel, supra
n 3 at 562-563 and M J Horwitz, ‘The History of the Public/Private
Distinction’ (1982) 130 University of Pennsylvania Law Review 1423
at 1423,1424.
[6] Classical
English legal theorists, on the other hand, have denied the distinction,
asserting that no rights are owed by the state
to an individual. These
theorists can be identified as legal positivists. One of the best known
exponents of this tradition, John
Austin, in his Lectures on
Jurisprudence (first published 1875) vol 1 at 237 remarked: ‘Where
protection is afforded, Right is the proper word. As against the sovereign,
there can be no legal
right.’
[7] P Vines,
‘The Needle in the Haystack: Principle in the Duty of Care in
Negligence’ [2000] UNSWLawJl 25; (2000) 23(2) UNSWLJ
35.
[8] Ibid at
56-57.
[9] Sutherland Shire
Council v Heyman [1985] HCA 41; (1985) 157 CLR 424 at
469.
[10] See note 47
below.
[11] R v Kirby; Ex
parte Boilermakers’ Society of Australia [1956] HCA 10; (1956) 94 CLR 254, Brandy
v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 127 ALR
1.
[12] I Omar, ‘High
Court and Human Rights in the Brandy Case’ [1995] AUJlHRights 8; (1995) 2(1) Australian
Journal of Human Rights 115 at
118-119.
[13] Public Service
Association of SA v Federated Clerks Union of Australia, South Australian Branch
[1991] HCA 33; (1991) 173 CLR 132.
[14]
[1968] UKHL 6; [1969] 2 AC 147.
[15] Jones
v Swansea City Council [1990] 1 WLR 54 at 85 per Nourse
LJ.
[16] [1985] HCA 41; (1985) 157 CLR 424 at
457-458.
[17] John Doyle and
Jonathon Redwood refer to this consideration in their article, ‘The Common
Law Liability of Public Authorities:
The Interface Between Public and Private
Law’ (1999) Tort Law Review 30 at 34.
[18] V Waye,
‘Justiciability’ in M Harris and V Waye (eds), Administrative
Law, Federation Press Sydney 1991 at
50.
[19] Ibid. This
argument is referred to by Doyle and Redwood supra n 17 at
34.
[20] For example, in the
particularly novel category of pure economic loss Gummow J in Perre v Apand
Pty Ltd [1999] HCA 36; (1999) 73 ALJR 1190 indicated that the most important policy
consideration of the court should be fault and that loss spreading was less
important.
This was a very different approach to that of the court in cases
such as Caltex Oil (Australia) Pty Ltd v The Dredge
“Willemstad” [1976] HCA 65; (1976) 136 CLR 529 in which the court was
preoccupied with considerations of indeterminate liability.
[21] S Kneebone, Tort
Liability of Public Authorities, LBC Information Services 1998 at
11.
[22] ECS Wade (ed),
Introduction to the Study of the Law of the Constitution, by A V Dicey,
10th edn 1959 at 193.
[23]
Kneebone, supra n 21 at
11.
[24]
Ibid.
[25] Sutherland
Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424 at
507-508.
[26] Crimmins v
Stevedoring Industry Finance Committee [1999] HCA 59; (2000) 74 ALJR 1 at
43-47.
[27] Perre v Apand Pty
Ltd [1999] HCA 36; (1999) 73 ALJR 1190 at 1221 per Gummow
J.
[28] Crimmins v
Stevedoring Industry Finance Committee [1999] HCA 59; (2000) 74 ALJR 1 at 17 per McHugh
J.
[29] Cattle v Stockton
Waterworks Co (1875) LR 10 QB
453.
[30] AWA Ltd v Daniels
t/as Deloitte Haskins & Sells ( 1992) 7 ACSR 759 per Rogers J.
Permanent Building Society (in liq) v Wheeler (1994) 11 WAR 187.
[31] For example, Birks refers to a breach of duty of a fiduciary for acting in conflict of interests in which there is no necessity for proof of harm at Birks, ‘The Concept of a Civil Wrong’ in DG Owen (ed), Philosophical Foundations of the Tort Law 38 at 40-41. Birks comments that:
[i]t is in the nature of a civil wrong to raise a practical question: when
shall an individual be allowed to complain on his or her
own account and to take
the benefit of the secondary or remedial obligation born of the wrong? The
obvious answer is in terms of
harm suffered. But it may be convenient or
prudent to allow other kinds of answer. The plaintiff must be affected
adversely in
a manner which the law deems sufficient to identify him as a victim
of the breach of duty and to give him standing to sue on his
own
account.
[32] M Horwitz,
‘The History of the Public/Private Distinction’ (1982) 130
University of Pennsylvania Law Review 1423 at
1430-1431.
[33] Ibid at
1426.
[34] Supra n 3 at
562-563.
[35] Birks, ‘The
Concept of a Civil Wrong’ in DG Owen (ed), Philosophical Foundations of
the Tort Law, (1995) 38.
[36]
Ibid at 31.
[37] E
Weinrib, ‘The Juridical Classification of Obligations’ in Birks P
(ed), The Classification of Obligations (1997) 44 at 41. Weinrib states
that ‘corrective justice treats the plaintiff as the sufferer and the
defendant as the doer
of the same injustice. The underlying idea is that,
because the doing and the suffering of an injustice are the active and passive
correlates of each other, the normative considerations that govern the
parties’ relationship apply correlatively to both.
To fit within
corrective justice, any reason for imposing liability on a particular defendant
must also be a reason for making that
defendant liable to the particular
plaintiff. Excluded, therefore, are reasons that apply unilaterally to either of
the parties.’
[38]
Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (2000) 74 ALJR
1.
[39] Sutherland Shire
Council v Heyman [1985] HCA 41; (1985) 157 CLR
424.
[40] Ibid at
469.
[41] D Kennedy, ‘The
Stages of the Decline of the Public/Private Distinction’ (1982) 130
University of Pennsylvania Law Review
1349.
[42] Ibid at
1351.
[43] Ibid at 1352;
supra n 9 therein.
[44]
Ibid at 1352.
[45]
Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR
424.
[46] Crimmins v
Stevedoring Industry Finance Committee [1999] HCA 59; (2000) 74 ALJR
1.
[47] The six stages,
according to McHugh J in Crimmins v Stevedoring Industry Finance
Committee [1999] HCA 59; (2000) 74 ALJR 1 at 19, are: ‘1. Was it reasonably
foreseeable that an act or omission of the defendant, including a failure to
exercise its
statutory powers, would result in injury to the plaintiff or his or
her interests: If no, then there is no duty. 2. By reason
of the
defendant’s statutory or assumed obligations or control, did the defendant
have the power to protect a specific class
including the plaintiff (rather than
the public at large) from a risk of harm? If no, then there is no duty. 3.
Was the plaintiff
or were the plaintiff’s interests vulnerable in the
sense that the plaintiff could not reasonably be expected to adequately
safeguard himself or herself or those interests from harm? If no, then there is
no duty. 4. Did the defendant know, or ought the
defendant to have known, of
the risk of harm to the specific class including the plaintiff if it did not
exercise its powers? If
no, then there is no duty. 5. Would such a duty
impose liability with respect to the defendant’s exercise of “core
policy –making” or “quasi-legislative” functions? If
yes, then there is no duty. 6. Are there any other
supervening reasons in
policy to deny the existence of a duty of care (eg, the imposition of a duty is
inconsistent with the statutory
scheme, or the case is concerned with pure
economic loss and the application of principles in that field deny the existence
of a
duty)? If yes, then there is no
duty.’
[48] Sutherland
Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424 at
500.
[49] Crimmins v
Stevedoring Industry Finance Committee [1999] HCA 59; (2000) 74 ALJR 1 at 29 per Gummow J
(agreeing with Hayne J) and at 55 per Hayne
J.
[50] Ibid at
42.
[51] Sutherland Shire
Council v Heyman [1985] HCA 41; (1985) 157 CLR 424 at
469.
[52] Romeo v Northern
Territory Conservation Foundation (1998) 192 CLR 431 at 485 per Kirby
J.
[53] Supra n
51.
[54] Kneebone, supra
n 21 at 122.
[55] (1998) 192
CLR 431.
[56] [1966] UKPC 2; [1967] 1 AC
645.
[57] This approach is
mentioned in footnote 47.
[58]
Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (2000) 74 ALJR
1.
[59] Mersey Docks &
Harbour Board Trustees v Gibbs (1866) LR 1 HL
93.
[60] Kneebone, supra
n 21 at 63.
[61] Anns v
Merton London Borough Council [1977] UKHL 4; [1978] AC
728.
[62] Kneebone, supra
n 21 at 69-77.
[63]
Ibid at 76.
[64] Anns
v Merton London Borough Council [1977] UKHL 4; [1978] AC
728.
[65] Kneebone, supra
n 21 at 79.
[66]
Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR
424.
[67] Ibid at
457.
[68]
Ibid.
[69] Ibid
at 461.
[70] Pyrenees Shire
Council v Day [1998] HCA 3; (1998) 72 ALJR 152 per Brennan CJ, Gummow J, Kirby
J.
[71] Crimmins v
Stevedoring Industry Finance Committee [1999] HCA 59; (2000) 74 ALJR 1 per Kirby
J.
[72] Pyrenees Shire
Council v Day [1998] HCA 3; (1998) 72 ALJR 152 at 158 per Brennan CJ, at 356-360 per
Toohey J, at 183 per Gummow J, at 196-197 per Kirby J. In Pyrenees
Shire Council v Day [1998] HCA 3; (1998) 72 ALJR 152 at 185, Gummow J identified control
mechanisms as a means of creating a duty where there a failure to exercise a
statutory powers
which is ‘an omission in the course of positive
conduct...which results in the overall course of conduct being the cause of
injury or damage.’ (Quoting Deane J in Sutherland Shire Council v
Heyman [1985] HCA 41; (1985) 157 CLR 424 at
501).
[73] Crimmins v
Stevedoring Industry Finance Committee [1999] HCA 59; (2000) 74 ALJR 1 at 43 per Kirby
J.
[74] Pyrenees Shire
Council v Day [1998] HCA 3; (1998) 72 ALJR 152 at 174
.
[75] Crimmins v Stevedoring
Industry Finance Committee [1999] HCA 59; (2000) 74 ALJR 1 at
20.
[76] Ibid at
19.
[77]
Ibid.
[78] Ibid
at 10.
[79] Sutherland Shire
Council v Heyman [1985] HCA 41; (1985) 157 CLR 424 at
469.
[80]
Ibid.
[81] Ibid
at 500.
[82]
Ibid.
[83] Kneebone,
supra n 21 at
107-110.
[84] Ibid at
vii.
[85] Nagle v Rottnest
Island Authority [1993] HCA 76; (1993) 177 CLR
423.
[86] Romeo v Northern
Territory Conservation Foundation (1998) 192 CLR
431.
[87] Sutherland Shire
Council v Heyman [1985] HCA 41; (1985) 157 CLR
424.
[88] Pyrenees Shire
Council v Day [1998] HCA 3; (1998) 72 ALJR
152.
[89] McHugh, Gummow and
Kirby JJ delivered judgments in both Pyrenees Shire Council v Day
[1998] HCA 3; (1998) 72 ALJR 152 and in Crimmins v Stevedoring Industry Finance
Committee [1999] HCA 59; (1999) 74 ALJR 1. Gleeson CJ agreed with McHugh J in
Crimmins case, and Gummow J agreed with Hayne J in Crimmins case.
In Crimmins case Hayne J followed Gummow J’s approach in
Pyrenees Shire Council v Day. Gaudron J and Callinan J delivered
separate judgments in Crimmins
case.
[90] Crimmins v
Stevedoring Industry Finance Committee [1999] HCA 59; (2000) 74 ALJR 1 at
17.
[91] Stovin v Wise
[1996] UKHL 15; [1996] AC 923 at 953.
[92]
Supra n 90.
[93]
Ibid at 7.
[94]
Ibid at 30.
[95]
Ibid at 31.
[96]
Ibid.
[97] Ibid
at 8.
[98] Ibid at
32.
[99] Ibid at
63.
[100] Ibid at
42.
[101]
Ibid.
[102] X
(Minors) v Bedfordshire County Council [1995] UKHL 9; [1995] 2 AC 633 at 739 per Lord
Brown-Wilkinson.
[103]
Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424 at
500.
[104] Samuel, supra
n 3 at 558.
[105] Supra
n 103.
[106] Crimmins v
Stevedoring Industry Finance Committee [1999] HCA 59; (2000) 74 ALJR 1 at
55.
[107] Ibid at
18.
[108] Sutherland Shire
Council v Heyman [1985] HCA 41; (1985) 157 CLR 424 at
500.
[109] Crimmins v
Stevedoring Industry Finance Committee [1999] HCA 59; (2000) 74 ALJR 1 at
18.
[110]
Ibid.
[111] S Todd,
‘Liability in Tort of Public Bodies’ in Mullaney & Linden (eds),
Torts Tomorrow – A Tribute to John Fleming, 1998 36 at
46-47.
[112] Crimmins v
Stevedoring Industry Finance Committee [1999] HCA 59; (2000) 74 ALJR 1 at
18.
[113] Ibid at
8.
[114] Ibid at
19.
[115] Kneebone, supra
n 21 at 28.
[116]
Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (2000) 74 ALJR 1 at 19
per McHugh J: ‘Would such a duty impose liability with respect to the
defendant's exercise of "core policy-making" or
"quasi-legislative"
functions?’
[117]
[1985] HCA 41; (1985) 157 CLR 424 at
469.
[118] Goldman v
Hargrave [1966] UKPC 2; [1967] 1 AC
645.
[119] Crimmins v
Stevedoring Industry Finance Committee [1999] HCA 59; (2000) 74 ALJR 1.
[120]
Ibid.
[121]
Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424 at
500.
[122] Ibid.
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