Date: Fri, 9 Dec 2005 10:44:47 +1100

From: Neil Foster

Subject: Kirby J. in the High Court of Australia

Dear Jason et al;

Thanks for taking up the serious point in this (I've really enjoyed reading the other emails about the case-name stuff as well, however!) I agree with what you say about the way that Lord Atkin was reasoning in Donoghue v Stevenson to some extent. He clearly was saying: on the one hand morality (informed by the Christian perspective of Jesus' story of the Good Samaritan) would require us to go to extraordinary lengths to care for others; but the law does not go so far.

However, the very concept that we are called on to care for ("in some circumstances", as Kirby J says) others as our neighbours can be seen to be supported by the Scriptural principles mentioned. It is just the circumstances that differ in the legal analysis from that of the principles of life generally.

We could probably debate the legitimacy of the reasoning in Lord Atkin's judgement forever, but re-reading it this year I was impressed with the subtlety of it. After all, he was starting with the handicap of the recent high-level Scottish decision in Mullen v Barr which was precisely on point except for the species of the deceased inhabitant of the ginger-beer bottle. He could have spent all his time pointing out why the Scottish court in Mullen v Barr got it wrong. But he starts from the other end, the end of morality. Look at what we would have to support if we simply turned morality into law - the costly and outrageous love of the Samaritan. No, we won’t go that far - we’ll spell out limits to the principle of morality using the notion of foreseeability. So instead of being seen as the judge who expands liability, he looks (at least at this point in his judgement) like a judge who limits liability which morality would otherwise impose.

But I would still support Kirby J's comment that this very idea of concern for neighbour is a valid principle, and is to some extent being undermined by the attitude of "watch out for yourself" which seems to underlie some recent decisions of courts in Australia, at least. While I don't necessarily disagree with the final result in Junkovic, it seems at least arguable that when you invite other people onto your premises so that you can profit from their purchasing your goods, then a few moments' consideration of whether there are aspects of your premises that should be attended to is not unreasonable.

Incidentally I think I agree with your view that the aim of the tort system should be to correct injustice. I think it is arguably "just", however, for someone who is proposing to make (even a small) profit out of others to do (even a bit) to guard against the others being hurt when they come on the premises.

Regards
Neil Foster

Neil Foster
Lecturer & LLB Program Convenor
School of Law
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

>>> Jason Neyers 9/12/05 3:00 >>>

Colleagues:

While Neil may find the "impassioned plea" of Kirby compelling, I do not:

Kirby J in Neindorf v Junkovic [2005] HCA 75 (8 December 2005)

[86] To the extent that the Court turns away from the earlier principles, in my respectful view it endorses notions of selfishness that are the antithesis of the Atkinian concept of the legal duty that we all owe, in some circumstances, to each other as "neighbours" [115]. This is a moral notion, derived originally from Scripture, that has informed the core concept of the English law of negligence that we have inherited and developed in Australia. It is the notion that, in the past, encouraged care and attention for the safety of entrants on the part of those who invite others onto their premises. (It also encouraged such persons to procure insurance against risk). To the extent that these ideas are overthrown, and reversed, this Court diminishes consideration of accident prevention. (It also reduces the utility and necessity of insurance). From the point of view of legal policy, these are not directions in which I would willingly travel.

Two points about this passage:

1) His Lordship’s summary is misleading in that Lord Atkin made clear that the principle derived from the scripture transmutes itself from one of (full) morality into one of legality (limited morality) — it must, otherwise the law would be legitimizing a Christian theocracy. The key classic difference between the moral view and the legal being that the legal principle allows for the very selfishness which Kirby says it denies: you must not hurt only those things which are already another’s but you do not have to cater to their needs or render them assistance to gain anything (see also Palsgraph, Dorset Yacht). This is clearly not the message that Christ was delivering in the Scripture. Hence, the private law is not levelling any playing field or redistributing (as Kirby claims in [85]) but is reasserting the status quo or correcting.

2) Kirby makes the classic instrumental mistake in taking the result, or end product, of having a legal system that corrects injustice, i.e. accident prevention and loss spreading through insurance, and turns these into the “purposes” of the law. I doubt that very few people would agree that the private law should be doing everything that prevents accidents (beheadings for speeding or impaired driving anyone?) or more efficiently spreads its losses (making the government vicariously liable for every accident caused by a citizen), yet if these are the law’s purposes a rational judge would pursue them diligently.

The failure to recognize these two errors are the reasons why Commonwealth tort law, and more generally private law, is in such a mess and why ultimately the “impassioned pleas” of Justice Kirby (in private law cases) are rarely ever persuasive.

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