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Article Excerpt
[The tort reform legislation of most Australian jurisdictions includes provisions directed specifically at protecting government defendants from civil liability. The legislation makes it harder to sue for breach of statutory duty, regulatory failure, the exercise of 'special statutory powers', and negligent failure to inspect the roads. These changes reflect an assumption long held at common law that there is something different about alleging government negligence, at least where the government is exercising statutory powers or performing statutory duties. The cases and reformers have long searched for the answer to the question of what that 'something' might be. This article considers the common law, analyses the legislation and then concludes by suggesting that a more principled approach would, in fact, focus on the nature of the functions performed, rather than on the identity of the defendant.]
CONTENTS I Introduction II The Scope of the Legislative Reform III The Common Law's Incompatibility Principle IV Does the Common Law Have Categorical Exclusions? V Getting behind the Common Law Labels VI Switching Resource Issues from 'Duty' to 'Breach' VII The Relationship between Statutory and Common Law Duties VIII Omissions IX Regulatory Failure X Statutory 'Policy' Defences and Wednesbury Unreasonableness XI Conclusion
I INTRODUCTION
A V Dicey's conception of the rule of law required governments to be held to account in the 'ordinary' courts according to 'ordinary law'. (1) Although Dicey recognised that there were some laws which applied to government that did not apply to everybody else, his starting point was very modern: wherever possible, the political imperative is to put government on a level playing field with the rest of us. (2) Accordingly, state legislatures in Australia began overturning the Crown's immunity from tort actions in the 1850s. (3) Those statutes which have overturned the Crown's tortious immunity typically state that in actions by or against the Crown (or state) the parties' rights shall, 'as nearly as possible', be the same as in a case between subjects. (4) Gleeson CJ commented in Graham Barclay Oysters Pry Ltd v Ryan ('Graham Barclay Oysters') that:
That formula reflects an aspiration to equality before the law, embracing governments and citizens, and also a recognition that perfect equality is not attainable. Although the first principle is that the tortious liability of governments is, as completely as possible, assimilated to that of citizens, there are limits to the extent to which that is possible. They arise from the nature and responsibilities of governments. In determining the existence and content of a duty of care, there are differences between the concerns and obligations of governments, and those of citizens. (5)
The remaining Australian statutes which allow suits against the Crown are silent as to the Crown's subjection to ordinary law being 'as nearly as possible'. They nevertheless have the same effect since that qualification flows not from statute but from substantive principles of the common law. (6)
It has long been difficult to give an account of the common law principles governing the liability of public authorities in negligence. While Dicey's equality principle applies in most cases, the exceptions to that principle have never been clear. Francis Trindade, Peter Cane and Mark Lunney have suggested three methods of approaching any discussion of government liability in negligence: (7)
1 By inquiring as to the source of the defendant's authority to have acted, asking whether it was statutory or not--this approach tends to cast the issues primarily as ones of statutory construction, asking whether the relevant Act can be taken as impliedly excluding a common law duty of care;
2 By asking whether the defendant is a public or private body--the danger of this approach is that it contradicts a fairly fundamental goal of our legal system that, as far as possible, the government's civil liabilities should be determined by the same principles that apply to its subjects; or
3 By considering the nature of the defendant's activity which allegedly harmed the plaintiff--on this approach, one asks whether the activity was public or private, but to do so one then has to seek the reason behind this question since the public-private distinction is otherwise unmanageable. This search for the underlying reason takes one straight back to the starting point, which is the search for the criteria for making exceptions to Dicey's equality principle.
The trouble is that while most people have a sense that governments occasionally warrant different treatment, the commentators have difficulty agreeing on a set of principles to determine when that is the case.
It seems to me that Trindade, Cane and Lunney were making a twofold point (with which I agree). First, none of their three approaches is entirely satisfactory. Secondly, and of at least equal concern, each approach is reasonably open in the current state of the common law. The common law on the liability of government authorities in negligence is remarkably confused. It has some failed attempts at unifying theories, plus a considerable number of more specific observations about particular issues as they relate to government liability. It has a lot of scraps, but very few of these can be safely assigned to the scrap heap.
This article will review the common law principles regarding government liability in negligence and attempt to assess the impact which the 'tort reform legislation' (enacted throughout Australia from the end of 2002) had on those principles. There are considerable differences in the detail of that legislation. This article will concentrate on the provisions of Part 5 of the Civil Liability Act 2002 (NSW) and will indicate where corresponding statutes in other Australian jurisdictions may differ.
Part 5 of the Civil Liability Act 2002 (NSW) deals solely with the tortious liability of public and other authorities, but one could hardly say that it is devoted to the topic. It has done very little to clarify things, but has done a lot more to make things even more unclear. Part 5 is not a codification of the common law, although it has clearly drawn on the cases. Like a bower bird, it picks up some of the common law's baubles from various judgments, but even these are not simply transplanted into the Act. They appear in the Act with puzzling modifications and with even more puzzling changes to their scope of operation. To make sense of Part 5, one has to understand what the scraps originally meant before one can understand what they might mean now. First, however, it is necessary to give a brief outline of the scope of Part 5.
II THE SCOPE OF THE LEGISLATIVE REFORM
The Review of the Law of Negligence: Final Report ('Ipp Report') recommended that a number of provisions be enacted to address or clarify particular problems relating to the liability of public authorities. (8) The report's principal recommendation was the enactment of a 'policy defence' to negligence claims against public authorities. (9) But it wanted to be sure that such a defence would not overreach.
Speaking broadly, the Ipp Report's policy defence focused on two types of negligence actions: (i) complaints concerning the careless allocation of scarce resources; and (ii) complaints concerning the careless formulation of social policy. The report recognised, however, that everyone has to balance scarce resources, and hence it did not want to allow governments to escape liability in negligence merely because they preferred to spend their money in other ways. (10) The report also recognised that its policy defence would overreach if translated into a provision allowing a defence for anything done in the performance of a statutory function, as many statutory functions (such as driving government cars) should be judged by ordinary law. (11) The Ipp Report's real problem, therefore, was to find a way of limiting the applicability of its policy defence, and that is where it provided very little guidance.
Ultimately, the Ipp Report recommended that its policy defence be limited to situations in which the defendant exercises a 'public function'. (12) However, the report declined to define that term, stating that '[t]his should be left for common law development.' (13) The Ipp Report's only hint as to how it understood 'public function' was tantalisingly brief--it was 'a function that required the defendant to balance the interests of individuals against a wider public interest, or to take account of competing demands on its resources.' (14) However, this simply restates the policy defence in overly broad terms without indicating how it might be limited. The report suggested that judges should decide whether it was 'appropriate' to apply the defence to any particular situation, (15) stating that:
It is extremely important to understand that whether any particular function is 'public' in this sense is not a matter of fact or observation but a value judgment which ultimately a court must make. (16)
The Ipp Report, therefore, proposed a policy defence but declined to define it. However, it did indicate those for whom the defence should be available. These were to be both corporate bodies and natural persons to the extent that they were exercising public functions. (17) This was in recognition of the fact that government entities are not the only bodies that exercise public functions. (18)
The Ipp Committee intended its policy defence to have a limited effect; it was not to be a total defence. (19) In situations where a court were to regard it as 'appropriate' to apply the policy defence (thus concluding that a 'public function' was involved), the defendant would still be liable if the way it exercised or omitted to exercise its public function was so unreasonable that no reasonable authority would have acted in that way (20)--that is, the Wednesbury standard of unreasonableness. (21) In other words, defendants who are able to use the policy defence would be in breach of their duty of care only if they were grossly careless. (22) The Ipp Report mistakenly thought that this reflected the state of English law as stated in Stovin v Wise ('Stovin'), (23) a case which is discussed at some length in Part VII of this article.
The Ipp Report's suggested transplant of Wednesbury finds some reflection in Part 5 of the Civil Liability Act 2002 (NSW), as does its recognition that governments are not the only bodies that perform public functions. (24) But very little else in that Part of the Act can reasonably be blamed on the Ipp Report. In particular, Part 5 defines 'function' in the standard form: 'function includes a power, authority or duty.' (25) It would be drawing a long bow indeed to suggest that Part 5 applies only where (as the Ipp Report had originally intended) the court forms a 'value judgment' that this is 'appropriate'. (26)
Part 5 has six substantive sections. Three of these relate not to 'public functions', but 'functions' simpliciter. (27) These are the sections laying down some general principles regarding the 'duty' and 'breach' issues for the defendants to which the Part relates, (28) the exercise or failure to exercise regulatory functions, (29) and the statement of principle that the exercise of a function does not in itself create a common law duty to keep on exercising it. (30) The remaining three substantive sections are much less general. They apply to breach of statutory duty, (31) 'special statutory powers' (32) and roads authorities. (33) None of the six substantive sections allows a toehold for the importation of the Ipp Report's suggestion that the policy defence be available only where the judge makes a value judgement that this is appropriate.
The Ipp Report recommended that its policy defence be available to anyone exercising a 'public function'. (34) This reflects an observation long recognised in the public law literature, namely, that 'government' is not the only body 'doing government'. (35) Government agencies do many things that need not be called 'public' for any relevant purpose, and private sector bodies and individuals sometimes exercise statutory or other governmental powers. However, Part 5 of the Civil Liability Act 2002 (NSW) is not so subtle. One of its substantive provisions applies to 'roads authorities', (36) whilst the remaining five apply to 'public or other authorities'. (37) The latter are defined in two ways: the nature of the body, and the nature of the activities in question. It seems that 'public authorities' are those which one would readily recognise as being part of 'government', whilst 'other authorities' are defined in terms of their role. The section lists a number of government bodies, ranging from the Crown to government departments, health organisations, local councils and public or local authorities created by statute. (38) Then there is s 41(e1), which extends the definition of 'public or other authority' to:
(e1) any person having public official functions or acting in a public official capacity (whether or not employed as a public official), but only in relation to the exercise of the person's public official functions ... (39)
Hansard reveals that the immediate purpose of s 41(e1) was to extend Part 5's protection to all doctors with a certification role under the mental health legislation. (40)
In short, Part 5 of the Civil Liability Act 2002 (NSW) expresses special solicitude for a range of government bodies and for others exercising 'public official functions'. It is not feasible to restrict Part 5's effect on government bodies by limiting 'functions' in the way the Ipp Report suggested. It is therefore pointless to attempt a similar limitation with respect to other bodies or people by limiting the meaning of 'public official functions'. Short of amendment, the best that can be done with Part 5 is to try to give a principled interpretation of its substantive provisions.
Several jurisdictions have broad copies of the New South Wales provisions protecting public authorities as such, although there are differences in detail. Only the NSW legislation extends its protection to non-government bodies or people performing public tasks. (41) The legislation in Queensland, on the other hand, protects only government bodies. (42) Similarly, the legislation in the Australian Capital Territory, Tasmania, Western Australia and Victoria focus on protecting government bodies. However, in these jurisdictions, subordinate legislation may be passed to extend the protective reach of these Acts. (43)
The Ipp Report seems to have had the greatest influence in WA. Although the legislation in WA only protects government entities, its provisions are headed: 'Liability relating to public function'. (44) 'Public functions' are not defined, although there is a 'policy defence', and the definition of 'policy decision' has clearly been derived from the Ipp Report. (45) Only the Northern Territory and South Australia have omitted all generic protection of public defendants, although the latter does have a particular protection for roads authorities. (46)
III THE COMMON LAW'S INCOMPATIBILITY PRINCIPLE
Since the death of 'proximity' as an organising principle for novel cases, the High Court's negligence decisions have tended to avoid grand statements. This is particularly true of the cases concerning the liability of public authorities in negligence. These cases are clearly viewed as a problem category, but the only solutions so far have been incrementalist. The House of Lords is often less incrementalist and it overtly engages in policy debates when confronted with novel negligence claims by reference to its notions of what might be 'fair, just and reasonable'. (47) Even so, it also admits to a lack of direction in the particular area of government liability in negligence. (48)
Almost 10 years ago in Pyrenees Shire Council v Day ('Pyrenees'), Kirby J noted that every attempt at 'a single unifying principle for liability in negligence' of public authorities had been exposed as inadequate. (49) We have been left with incrementalism by analogy and with a series of so-called 'salient factors'. Kirby J disparaged what one might call a method of muddling through by analogy. (50) In effect, his Honour called for a map and a compass or, as he put it, 'some concept of the principle by which analogy is to be discovered.' (51) Gummow J tracked the rise and fall of general negligence theory in the High Court, concluding that the search for an overall principle was a pipedream:
What the above-mentioned shifts in authority over fairly short periods demonstrate is the unlikelihood that any writer who tackles the subject, even in a final court of appeal, can claim thereafter a personal revelation of an ultimate and permanent value against which later responses must suffer in comparison. (52)
In Graham Barclay Oysters, Kirby J quoted a passage from Homer reciting Ajax's prayer to the gods: '[S]ave us from this fog and give us a clear sky, so that we can use our eyes.' (53) The fog remains. Indeed, the Civil Liability Act 2002 (NSW) has made it even thicker.
The only clear rule that Kirby J could identify was that there must be no incompatibility between a public authority's statutory powers and obligations on the one hand, and its common law duties on the other. (54) At the risk of appearing hypercritical, I should say at the outset that even this was misleading in two respects.
Statutory powers and duties prevail whenever they come into conflict with the common law and the common law is unable to make a satisfactory adjustment. This is so regardless of whether the statute's scope extends beyond public defendants to private defendants.
For instance, doctors checking children for signs of sexual abuse owe a paramount duty to the children. Statutes typically require them to report child sexual abuse symptoms regardless of whether the doctors are working in the public or private health sectors. (55) In NSW, the Children and Young Persons (Care and Protection) Act 1998 (NSW) states that people who are not covered by mandatory reporting obligations 'may' nevertheless make reports, (56) as if an enabling Act were necessary. In each case, the reporting duty or power is conditional on the person having 'reasonable grounds to suspect'. (57) These Acts typically contain a provision protecting people from certain types of civil liability when they make a report. In NSW, such a provision protects people making reports in good faith from actions in defamation, malicious prosecution and conspiracy. (58) It says nothing about negligence. Nor does it offer protection to a person who decides in good faith not to report. In SA, the protection in the Community Welfare Act 1972 (SA) used to apply to all types of civil liability, but it was limited to people making reports in good faith 'in compliance' with the Act, (59) thus one might doubt whether that applied to those not covered by mandatory reporting obligations.
It is established from Sullivan v Moody ('Sullivan') that doctors with reporting functions do not owe a common law duty of care to parents suspected of sexually abusing their children. (60) The doctors in that case were in the private sector and their contractual relationship was with the Department of Community Welfare which had sought their opinions. One must therefore qualify even the one clear principle that Kirby J was able to save from the fog. His Honour was right to say that a common law duty of care cannot coexist with an incompatible statutory function. It is obvious that statute trumps the common law if that is what it comes down to. But when statute prevails over the common law, it does so regardless of whether the defendant is a public or private authority.
Sullivan prompts another question, which is whether the incompatibility of duties owed to the child and the parent necessarily depends on statute. The High Court determined two appeals in Sullivan, both from the Full Court of the South Australian Supreme Court. (61) The High Court noted at some length that there had been a difference of opinion in the reasons given by the judgments...
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