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Forensic Immunity to Negligence Actions:
Continuing Challenges for the Common Law
Barbara Ann Hocking* (^) BA, LLB (Monash), DipGrad LegStuds (Sthlm), LLM (Lond), PhD (Qld) Assistant Dean of Research. Faculty of Law, Queensland University of Technology
Stewart Muirhead (^) LLB (Hons) (London), LLM (QUT)
I. Introduction
As the common law of negligence has continued on its imperial expansion, related pressures have been brought to bear upon the long-standing immunities of some parties from negligence actions. These immunities include Crown immunity, military immunity, highway authority immunity, expert, witness, judicial immunity and barrister's immunity. However in recent years several of these traditional concepts of immunity under the common law have been put under scrutiny and progressively dismantled. This cross-jurisdictional development particularly applies to highway authorities and barristers. The High Court of Australia recently abolished the traditional immunity granted to highway authorities for acts of non-feasance. The House of Lords recently abolished barristers' immunity but the Australian law persists with limited immunity in that context. Other immunities, notably those of judges, experts and witnesses have greater protection. There has been a tendency by the appellate courts to critically evaluate immunities and ask what public policy needs they serve. This paper analyses those decisions and seeks to explain why those well- established immunities no longer form so clear a part of English and Australian jurisprudence. The issue is timely, given the current debate on the 'indemnity crisis', since it serves to place the expansion of negligence in a broader legal context. The analysis is undertaken in three parts. The first part looks at the immunity of public authorities: a well-traversed area of law, deriving from the general principles of Crown immunity. This part reviews the development of the law from the House of Lords decision in Anns v Merton London Borough Council1 to the Australian High Court decision in Pyrenees Shire Council v ~ a y ~. A review of the judgments in Brodie v Singleton Shire Council; Ghantous v Hawkesbury City council3 is undertaken to show the present position adopted by the High Court of Australia. This part argues that the continued survival of immunities in negligence, such as that of public authorities, needs to be persistently revisited in the light of the complexities of modem privatisation and rationalisation of traditional public enterprises and services. The second part looks at barrister's immunity: an immunity founded in public policy and the interests of justice. This part analyses the recent House of Lords decision in Arthur JS Hall v Simons4 and presaging the High Court of Australia's next step on the advocates' immunity issue following comments by Kirby J in Boland v ~ates.' In this part, we argue that the time
- The authors would like to acknowledge the assistance of Tamara Walsh in the preparation of this article. 1 [I9781 AC 728. 2 (1998) 192 CLR 330 (referred to as Pyrenees). 3 (2002) 206 CLR 512 (referred to as Brodie and Ghantous respectively). 4 [2002] 1 AC 615 5 [I9991 HCA 64 (9 December 1999).
92 Barbara Ann Hocking and Stewart Muirhead
is now right for the High Court of Australia to review Giannarelli v wraith6 and to bring advocates' immunity in Australia into line with the recent changes to English law. In order to provide a full picture, the final part of the paper looks at immunities granted to judges, lay and expert witnesses, and experts exercising an arbitral function: immunities also founded on the interests of justice. The English Court of Appeal decision in Stanton v Callaghan7 is considered in this part, as one of the few cases to demonstrate the public policy rationales for immunity from a negligence action. In this part we articulate that some common law immunities may reasonably be left untouched in the interests of the administration of justice.
II. The meaning of immunity in the negligence context
The classic exposition of forensic immunity must begin with Crown immunity. Selway expresses the immunity of the Crown at common law in this way: 'At common law the Crown enjoyed various prerogative immunities or preferences when sued before the
court^.'^ In essence, the Crown 'was incapable of committing a "wrong" and could not
be liable in tort.'9 According to the New South Wales Law Reform Commission there were two meanings to this immunity. The first was that the inability to be sued in tort was simply an aspect of the Crown's broader immunity from suit.'' The other view of Crown immunity was 'that the maxim "the King can do no wrong" had the effect that the Crown could not commit a tort' at common law, even where the same act committed by someone else would be tortious.ll
Ill. Public authority immunity
I. The Developr~zentof Liability of Public AuthoritiesI The immunity of public authorities derives from the general principles of Crown immunity. Both Aronson and Kneebone have documented the intersections between Crown immunity and public authority immunity and the various rationales in considerable detail. As Kneebone observes, 'the doctrine of estoppel in relation to public authorities demonstrates that the courts do sometimes treat governments differently because they are exercising public power.'13 In Feldthusen's view, separation of powers principles justify that liability of a public authority should be different from liability of the ordinary citizen. How often - and in precisely what incarnation -they are treated differently is changing. In the common law jurisdictions of England, Australia, New Zealand and Canada, as a matter of general principle the liability of public authorities in negligence is determined by the same rules that apply to private individuals.15 However, in these four common law jurisdictions, different adaptations to the formulation of a duty of care apply where the exercise of statutory functions is in issue. The divergence in approach followed Lord Wilberforce's test in the
(1988) 165 CLR 543. [I9991 2 WLR 745. Selway B, 'The Source and Nature of the Liability in Tort of Australian Governments' (2002) lO(1) Tort Lnw Review 14 at 15. Note 8. Note 8. Note 8. The authors wish to acknowledge the work of Dr Susan Kneebone on Tort liability of Public Authorities, LBC Information Services, Sydney, 1998, which assisted the authors' understanding of the development of tortious liability of public authorities post Ann,$. Kneebone S, Book Review, Liabilih for Negligent Words, Hocking B, Federation Press, Sydney, 1999, in (2001) 9 Torts Law Journal 2 19 at 221. Feldthusen B, Econoinic Negligence: The Recovery of Pure Economic Loss, 4th ed, Carswell, Ontario, 2000, 265-27 1. Known as the 'general principle'.
(^94) Barbara Ann Hocking and Stewart Muirhead
even if the facts suggested a prima facie duty of care.26 Because the defendant was a public body, a distinction between duties and 'mere powers' had to be closely examined.*' Because the Act in question was drafted in terms of functions and powers, rather than positive duties, such powers had to be exercised to fulfil the statutory purpose which was concerned with 'health and safety'. Lord Wilberforce said that the issues were whether the defendant Council was under (a) a duty of care to the plaintiffs to carry out an inspection of the foundations, (b) a duty, if any inspection was made, to take reasonable care to see that the by-laws were complied with, and (c) any other duty including a duty to ensure that the building was constructed in accordance with the plans. Lord Wilberforce found that a duty of care could arise in each of those situations. In relation to (a) the Council was under a duty to give proper 'consideration' as to whether they should inspect or not; that it could not be argued that it need not inspect at all.29 As to (b) and (c), if inspections were made, there was a duty to exercise the power carefully, which extended to 'ensuring compliance' with the by- l a w ~. ~ ~Lord Wilberforce suggested that the policy operational distinction was relevant to determine whether there was a justiciable exercise or non-exercise of a statutory di~cretion.~'The conclusion that there was a duty to consider the exercise of the power and a duty to ensure compliance with the by-laws was significant as such issues were normally only justiciable on judicial review. The test in Anns was then considered by the House of Lords in Murphy v Brentwood District ~ o u n c i l. ~ ~Murphy suggested that Anns was wrong on its facts in imposing the private law duty of care on a public authority to avoid the infliction of pure economic loss by enforcing building by-laws. Murphy utilised the 'core method', namely to look for a private analogy to impose liability. The Anns test was replaced with a fresh three-part test. The three criteria were: foreseeability of damage, proximity of relationship and whether it is 'fair, just and reasonable' to impose a duty. The proximity requirement uses a 'control mechanism' to exclude liability for certain categories of loss such as pure economic loss. The third criterion is a re-statement of the second stage of Lord Wilberforce's test. By way of comparison, the Australian High Court, whilst agreeing that proximity and foreseeability were separate requirements, concentrated upon proximity as a means of limiting the liability of public authorities as opposed to utilising the third criterion.
Note 25 at 754. Note 25 at 754. Note 25 at 752. Note 25 at 755. Note 25 at 755. Lords Diplock, Simon and Russell agreed with his conclusions. Although, Lord Simon concluded that a duty to take reasonable care in undertaking inspections arose only in this case. See also Takaro Properties Limited v Rowling [I9861 1 NZLR 22, where Quillian J applied the policy operational test at the second stage of Lord Wilberforce's test. Lord Wilberforce described the policy operational distinction as: 'Most, indeed probably all, statutes relating to public authorities or public bodies, contain in them a large area of policy. The Courts can call this discretion meaning that the decision is one for the authority or body to make, and not for the Court. Many statutes also prescribe or at least pre-suppose the practical execution of policy decisions; a convenient description of this is to say that, in addition to the area of policy discretion, there is an operational area. Although this distinction between the policy area and the operational area is convenient, and illuminating, it is probably a distinction of degree; many operational powers or duties have in them some element of discretion. It can safely be said that the more operational a power or duty may be, the easier it is to superimpose upon it a common law duty of care.' (See [I9781 AC 728 at 754.) [I9911 1 AC 398 (hereinafter referred to as Murphy). Sutherland Shire Couizcil v Heyman (1985) 157 CLR 424. Gibbs CJ agreed with Lord Wilberforce's 'duty to consider' analysis, though he utilised proximity as a 'composite expression'. At this stage in the history, the Australian Courts also accepted and frequently applied the policy operationaI dichotomy. This can be contrasted against the present day approach adopted in Pyrenees Shire Council v Day, where the distinction was heavily criticised by Gummow J. In support of that criticism he referred to a number of United States Supreme Court authorities, in particular, United States 1. Gaubert (1991) 499 US 315.
Forensic Immunity to Negligence Actions 95
The three-stage test in Murphy was an endorsement of the test adopted by the House of Lords in Caparo Industries PLC v ~ i c k m a n. ~ ~Murphy involved a claim brought by the purchaser of a house which developed cracks because the foundations were defective. The plans for the foundations had been approved by the local authority after consultation with an engineer. It was obligatory for the local authority to approve the plans.35 When the defects were discovered, the purchaser decided not to repair the foundations and sold the house for a substantial loss. The three-stage test was applied and the local authority was not liable for negligent failure to ensure that the plans conformed with the by-laws because the loss was pure economic loss.36Lord Keith considered Anns wrongly decided and held that the purpose of the Act was not to extend the avoidance of pure economic loss.37Since those decisions, at a time when English law was grappling with its own 'torts phase', negligence law has developed rapidly. A more recent case of note is X v ~edfordshii-e which ushered in a new era of negligence suits based on the failure of social service authorities, in the Thatcher era, to actively pursue child protection policies. That case, together with Stovin v provides authority for the principle that 'if a person negligently injures another as a result of exercising a statutory power, the person may have committed tortious n e g l i g e n ~ e. ' ~ ~ The Canadian Courts have adopted the Anns two-stage test and favoured the control- reliance categorisation." Indeed, until recently, the 'Canadian courts have consistently applied the Anns test.'42 However, the Supreme Court of Canada has, in one view, 'now significantly reformulated that test.'43 In one view that reformulation expands the test 'so that it can cover the whole of Canadian negligence In another view, it has 'been so altered that it may no longer be appropriate to link it back to A n n ~. ' ~ ~ In New Zealand, the Courts have also accepted Lord Wilberforce's formulation but unlike the Canadian Courts, distinguished between foreseeability and proximity, echoing similar conceptualisations in Australian law. Like the Canadian Courts, they have adopted a more expansive attitude to the tort liability of public a ~ t h o r i t i e s. ~ ~
b. Developments in Australia from Heyman v Sutherland Shire In Heyman the Australian High Court rejected Lord Wilberforce's view that proximity was equivalent to foreseeability. Three judges48 applied a reliance concept as part of the proximity question. The Australian High Court rejected Lord Wilberforce's 'duty to consider' approach but they endorsed the policy operational d i ~ t i n c t i o n. ~ ~ Heyman was a case where it was argued that a Council had been negligent in the use of its statutory powers in either failing to inspect, or inspecting negligently, the foundations
[I9901 2 AC 605. See section 64 of the Public Health Act 1936. In Murphy, the House of Lords approved the reasoning in D & F Estates Limited v Church Commissioners of England [I9891 1 AC 177. By way of contrast, English Courts have traditionally limited the application of pure economic loss claims as compared with Australia: see Bryan r' Maloney (1995) 182 CLR 609. Note 32 at 469. Murphy did not entirely disapprove of the Anns reasoning. Lord Wilberforce's analysis of the duty of care as leading to a duty to consider the exercise of the discretion and the duty to take care in exercising it, &d not receive adverse comment. See: Lord Keith's judgment at 461462. [I9951 2 AC 633. [I9961 3 WLR 388. Cane P, The Anatomy of Tort Law, Hart Publishing, Oxford, 1997 at 55. See Ruthfield v Manolakos (1984) 10 DLR (4th) 641. Note 23 at 10. Note 23 at 10. Note 23 at 10. Note 23 at 10. See Brown v Heathcote County Council [I9861 1 NZLR 76. (1985) 157 CLR 424. Mason, Brennan and Deane JJ. See note 14 - the High Court no longer considers the 'policy operational' distinction workable.
Forensic Immunity to Negligence Actions (^97)
instead of appeals to vacuous general principle^.^^ In Hill (t/a R F Hill & Associates) v
Van ~r~~~ the majority of the High Court conceded that insofar as it endeavoured to provide guidance for the ascertainment of a duty of care in particular cases, the utility of the concept of proximity had been greatly exaggerated.62It is arguable that the proximity concept has been abandoned in general negligence cases although it continues to feature in deliberations over nervous shock claims in negligence. It is against this historical background that this article will examine the recent decisions of the High Court of Australia and examine why the immunity relating to the 'highway rule' has now been abrogated.
2. Recent decisions on the non-feasance and misfeasance dichotomy It has been accepted in Australia that the common law provides Highway Authorities with an immunity from legal liability for negligence and nuisance. The immunity is conditional upon the claim against them concerning some element of the Highway and arising out of the failure, known as 'non-feasance' of the authority to exercise its powers, as distinct from a 'misfeasance' or negligent exercise. The immunity arises not by way of statute, but as a result of the common law.63 The dichotomy between misfeasance and non-feasance owes its origins to the development of trespass, case and assumpsit. In relation to public authorities the long-standing distinction was drawn as far back as 1867.@ In the High Court decision in Brodie and Ghantous, the judgments of Gaudron, McHugh and Gummow JJ (referred to as the 'joint judgment')65 illustrate the illusory distinctions between the categories of misfeasance and non-feasance as part of the Highway rule. The difficulty in its application appears to be a reason for its removal. Recent cases suggest that the misfeasance doctrine applies only where the authority is an active agent in creating or adding to an unnecessary danger. However, a public authority may be guilty of misfeasance if it takes 'any' positive action in respect of a road, even if that action is an attempt to remove a danger already existing. Had the public authority left the road alone notwithstanding the danger, that decision may be one of non-feasance and accordingly the public authority would escape liability.
a. The facts and decision in Brodie and Ghantous Mrs. Ghantous tripped and fell whilst walking along a concrete footpath. Since the original construction of the footpath, erosion had resulted in subsidence of the earth, so that the verge was 50mm below the concrete. When she stepped aside to allow other pedestrians to pass, she placed her foot so that it was partly on the concrete and partly on the lower verge which resulted in her In Brodie, the accident occurred when the first applicant drove a truck owned by the second applicant onto a bridge constructed some 50 years earlier within the Singleton Shire. The truck weighed 22 tonnes and the bridge was adapted to bear a load of 15 tonnes.
60 Heyman (1985) 175 CLR 424 at 481. This approach has been adopted by the House of Lords; see Caparo Industries PLC v Dickman [I9991 2 AC 605 at 61 8, per Lord Bridge; Murphy v Brentwood District Council [I9911 1 AC 398 at 485486 per Lord Oliver. 61 (1997) 188 CLR 159. 62 Note 61 at 175-179 per Dawson J. at 188-190 per Toohey J, at 210-211 per McHugh J, at 237-239 per Gunlmow J. 63 Note 3 per Kirby J at 586. 64 Parsons v St Mathew, Bethnal Green (1867) LR 3CP 56 at 60. 65 Note 3 at 86. 66 See City of Melbourne 11 Bnrnett [I9991 2 VR 726 at 729- 67 See Marr v Holroyd Municipal Council [1986] 3 MVR 235 at 242-244. In that case, the negligent repair of a pothole led to the more rapid reoccurrence of the danger to the plaintiff. The failure to attempt repairs would fall within the category of non-feasance resulting in the plaintiffs action falling foul of the 'highway rule'. (^68) Note 3 per Gleeson CJ at 525.
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The timber girders failed, the bridge collapsed and the truck fell onto the creek bed below. The second applicant's truck was damaged and the first applicant suffered injuries to his back. The applicants claimed that the accident was caused by the negligence of the Shire Council. At first instance, the case was held to be one of misfeasance. The Shire Council appealed to the New South Wales Court of Appeal and was successful. There it was held that such actions by the Council in replacing defective planks on the bridge were no more than superficial repairs which amounted to non-fea~ance.~~ Both cases were heard consecutively and raised fundamental questions regarding the applicability of the principles of the tort of negligence and of nuisance in actions against public authorities on which statute confers power for the constructions, maintenance and repair of public roads, which included bridges, culverts and footpaths.70 The public authorities argued that they were protected by an immunity known as the Highway authorities immunity following the decisions of Buckle v Bayswater Road ~oard7l and Gorringe v The Transport Commission ( T A S ). ~ ~ The public authorities argued that the decisions of Buckle and Gorringe were correctly decided and should not be subjected to a further review. Mrs. Ghantous failed in her action against Hawkesbury City Council. The High Court unanimously dismissed the appeal, albeit for differing reasons.73By a bare majority Brodie was successful against the Shire Council. The division in the High Court was predominantly due to the issue of whether the High Court was the appropriate forum in which to remove the immunity and replace it with a new test.
b. Was it appropriate for the High Court to review such a long established common law rule? In the High Court, Gaudron, McHugh, Gummow JJ, and Kirby J were in agreement that it was appropriate for the Highway Rule to be abolished in favour of a suitable replacement. Difficulties in earlier case law had prompted judges to comment that the rule 'can no longer command an intellectual assent'.74 On that basis, the court considered that it was entitled to look into the authorities which constituted that precedent. In defence of Buckle and Gorringe which set the precedent, the Shire Council in Mrs. Ghantous' case relied heavily on Mason J's statement in State Government Insurance Commission v Trigwell commenting that the High Court 'is neither a legislature nor a law reform agency'.75 That proposition has been readily accepted, however the confusion now surrounding the Highway rule 'neither promotes the predictability of judicial decision nor facilitates the giving of advice to settle or avoid l i t i g a t i ~ n. ' ~ ~In support of that position, the joint judgment relied on McHugh J in Perre v Apand Pty ~ t d who remarked: , ~ ~ While stare decisis is a sound policy because it promotes predictability of judicial decision and facilitates the giving of advice, it should not always trump the need for desirable change in the
See Note 3 per Gaudron, McHugh and Gurnmow JJ at 538. See Note 3 per Gaudron, McHugh and Gummow JJ at 538; see section 12(1) of the State Roads Act 1986 (NSW). (1936) 57 CLR 259 (referred to as Buckle). (1950) 80 CLR 357 (referred to as Gorringe). Gleeson CJ and Callinan J agreed that there was no case of negligence to be made out against the respondents at 526; Gaudron, McHugh and Gummow JJ similarly agreed with Callinan J at 582; Kirby J held that Mrs. Ghantous did not establish that the original construction of the footpath was negligent at 605 and to enable Mrs. Ghantous to have been successful she must have established that there was a want of reasonable care by the public authority to prevent her injuries. Her mishap was simply an accident at 606-607; Hayne J agreed with Callinan J. Commissionfor Railways (NSW) v Cardy (1960) 104 CLR 274 at 285. (1979) 142 CLR 617 at 633. Note 3 at 560. (1999) 198 CLR 180.
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and qualifications have now arisen out of the rule, the result being that the law can only be described as unprin~ipled,~~unacceptably uncertainx9 and anomalous. Kirby J concluded that the court should re-express the Highway rule. In supporting an alteration, there were four considerations to be born in mind. Firstly, there can be no re- expression of the law that is incompatible with the Australian constit~tion.~'Secondly, any fundamental change in the common law must follow through the logical consequences of the previous shift in law, when a new direction must be taken it is pointless to yearn for return to the past.92 Thirdly, the court must contribute to the simplification of legal concepts. As is noted above, the non-feasance and misfeasance dichotomy had received considerable criticism in past cases. Fourthly, whilst the legislature has the primary role in reformulating the common law that in itself does not relieve the court of its own responsibility to repair defective judge made law. In support of that, the development of liability for negligence alone demonstrates that the courts are capable of re-expressing outmoded rules or i m m ~ n i t i e s. ~ ~ The four considerations applicable in rejecting any proposed alteration to the common law are firstly, the court has to take into account the extent to which the challenged rule is established by a long standing authority.94If the rule has been recently affirmed by the High Court, it is inappropriate to then subsequently alter it." Secondly, substantial changes in the common law are undertaken with great care, generally the common law advances on an incremental basis by analogous reasoning.96 Thirdly, public and private interests have to be accounted for and it is relevant to take into account the capacity of those affected; the wider and more varied the class affected by any change, the greater the need for caution by a court invited to re-express the law. Fourthly, it is relevant to consider whether the legislature has overlooked the defects in the law in question or whether it has intervened, but withheld change of the particular kind urged upon the court. These considerations were relevant in Lipohar v The ~ u e e n. ~ ~ Having regard to the above considerations, was it appropriate for the courts to abolish the Highway ~ u l e? ~ 'The greater the affront to justice and the more confused the principle is, the more likely a judge is to reformulate the expression of the law. On the other hand, judicial inclination leans towards restraint usually on the basis of the antiquity of the rule and the interests of those affected by it.
See Note 3 at 549-551. See Note 3 at 563-564. McDonald B, 'Immunities Under Attack: The Tort Liability of Highway Authorities and their Immunity from Liability for Non-Feasance: Brodie v Singleton Shire Council, Ghantous v Hawkesbury City Council', (2000) 22 Sydney Law Review 411 at 420. Brevington v Godleyman (1988) 169 CLR 41 at 135; John Pfeiffer Pty Ltd v Rogerson (2000) 74 ALJR 1109 at
Note 3 per Kirby J at 593. Northern Sandblasting (1997) 188 CLR 313; Boland v Yates Property Corporation Pty Ltd (1999) 75 ALJR 209; and Jones v Bartlett (2000) 75 ALJR. Examples such as Pyrenees Shire Council v Day (1998) 192 CLR 330; Romeo v Conservation Commission NT (1998) 192 CLR 431. See also Hill v Chief Constable of West Yorkshire [I9891 AC 53. See Commission for Taxation v Esso Petroleum (1999) 201 CLR 49 at 86-7. In Esso's case, the sole purpose test was replaced in favour of the dominant purpose test. The reformulation of disclosure had last taken place in Grant v Downes (1976) 135 CLR 674. See Esso (1999) 201 CLR 49 at 86-87. (1999) 200 CLR 485. The case dealt with the law of conspiracy. See also the Esso case dealing with legal professional privilege. Question posed by Kirby J in Note 3 at 597.
Forensic Immunity to Negligence Actions 70 1
c. Arguments in favour of retaining the immunio The respondents in Brodie and Ghantous argued that the court should not depart from the immunity rule which protected them, and that the distinction between non-feasance and misfeasance be adopted as in Buckle and Gorringe. The Highway rule was settled in England as long ago as 1895.99 The relevant legislation1ooprecluded re-expression of the common law as the New South Wales Parliament had accepted the 'immunity'. The respondents placed emphasis on the policy advantages of retaining a special rule having regard to a country the size of Australia with a vast network of roads open to harsh climatic conditions. The absence of the immunity and application of the ordinary law of negligence would expose Highway authorities to increased litigation. Despite the recommendations for reform of the common law by law reform bodies in three Australian States, the respective legislatures had failed, or refused to enact, the changes.lol Gleeson CJ, Hayne J and Callinan J were all opposed to the abolition of the Highway Rule. Bropho v Western Australialo2 modified the common law principle of statutory construction and pointed out that the effect of the decision was not to overturn the settled construction of the legislation in question. The court highlighted that a 'judge made rule' of construction may be supplemented by legislative provision. However, in Gleeson J's opinion the court was being invited to overturn the settled construction of the legislation,lo accordingly he followed State Government Insurance Commission v ~ r i ~ w e 1 l. l ~ ~ The Law Reform Commission of New South Wales had considered in its report that the non-feasance rule was unsatisfactory and needed legislated reform. A consideration in the report was for the financial consequences of the proposed change which would have to be investigated. Because the New South Wales Parliament did not act on the recommendations of the Law Reform Commission it was not appropriate for the Court to take that step without the benefit of such investigations. Hayne J disagreed with the joint judgment and their reliance on Miller v McKeon, saying that case concerned the nature and the extent of the duty which the Highway Authority owes, when first building a road, to make it safe to use. Griffith CJ in Miller's case referred to the distinction between misfeasance and non-feasance and concluded that the plaintiff's complaint concerned the way in which the road was originally laid out and built. It was not a complaint about anything later done (or not done) to the road. The question raised in Miller was whether in building the road the government had used 'such care to avoid danger to persons using it as is reasonable
under all the circumstance^'.^^^ Although Callinan J concluded that in Brodie's case the
acts of the public authority did not amount to misfeasance, regarding whether the courts were the appropriate forum in which to re-express the Highway rule, his Honour commented: Section 17 of the State Roads Act used the word 'immunities' also. It is highly likely that the legislature in using the word was not only using it in the same sense as the courts frequently
99 See Gorringe (1950) 80 CLR 357 at 378. 100 Main Roads Act 1924 (NSW) section 32 (1A) as amended by the Main Roads and Local Government (Amendment) Act 1957 (NSW) section 2 (see joint judgment at 570-571). 101 NSW Law Reform Commission Liability of Highway Authorities for non-repair, Report NO 55 (1987); Law Reform Commission of Western Australia, Report on the liability of Highway Authorities for nonfeasance, Report No 62 (1981); Law Reform Committee of South Australia, Report on reform of the Law relating to misfeasance and non-feasance, Report No 25 (1974); Law Reform Committee of South Australia, Report relating to the review and reappraisal of the 25th report of this committee on the subject of misfeasance and nonfeasance, Report No 51 (1986). 102 (1991) 171 CLR 1. 103 See Note 3 at 534-535. 104 Mason J emphasised that the court was not a law reform agency. 105 Note 3 per Hayne J at 614.
Forensic Immunity to Negligence Actions 7 03
Kingborugh ~ o r ~ o r a t i o n " ~observed that the duty of care upon a public authority fell within the principle of the well known neighbor statement of Lord Atkin in Donoghue v Stevenson. l9 In Aiken, Dixon J concluded that: 120 [Tlhe public authority in control of such premises is under an obligation to take reasonable care to prevent injury to such a person through dangers arising from the state or condition of the premises which are not apparent and are not to be avoided by the exercise of ordinary care. Whereas the analogy with occupiers was accepted, the formulation of the content of the duty of care relating to public authorities 'should not further pursue any analogy between occupation of privately owned land and the management and control by statutory bodies of land set aside for public use and enjoyment'.l2l Importantly, public authorities require special consideration. The duty of care formulated by Mason J in Wyong Shire Council v Shirt122was adopted by the majority.lZ3Authorities having statutory powers conferred by the local government act are now obliged: [T]o take reasonable care that their exercise of or failure to exercise those powers does not create a foreseeable risk of harm to a class of persons (roadusers) which includes the plaintiff. Where the state of a roadway, whether from design, construction works or non repair poses a risk to that class of persons, then to discharge its duty of care an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk. If the risk be unknown to the authority or latent and only discoverable by inspection, then to discharge its duty of care and authority having power to inspect is obliged to take reasonable steps to ascertain the existence of latent dangers which might reasonably be suspected to exist. Mason J's formulation of a public authority's duty of care was adopted,lZ5however the test was required to take into account factors such as the magnitude of the risk, the expense, and the difficulty and inconvenience of the public authority in taking steps to alleviate the danger. The newly formulated duty does not extend to insuring the safety of road-users in all c i r c ~ m s t a n c e s. ~ ~ ~The application of the test depends very much on the facts and circumstances disclosed by the evidence in each case.127The joint judgment highlighted the considerations to be taken into account.
fi The role of misfeasance in public ofice It remains to consider the role of the related tort of misfeasance in public office, whose boundaries have recently also been subject to redefinition. That tort is more concerned with improper exercise of statutory powers and is generally characterised by 'dlshonesty in some form being exhibited by the defendant in the exercise of the powers.' We see, however, in Lord Steyn's summary of the competing policy considerations that underpin the tort of misfeasance, some of the fundamental rationales for the immunity of public authorities in negligence, a balance between:
118 (1939) 62 CLR 179 at 206-207. 119 [I9321 AC 562 at 579- 120 (1939) 62 CLR 179 at 210 121 Note 3 per joint judgment at 577. 122 (1980) 146 CLR 40 at 4748; see also Webb v The State of South Australia (1982) 56 ALJR 912 at 913. 123 Note 3 at 577. 124 Note 3 at 577. 125 See Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48. 126 See Public Bodies Review Committee of the New South Wales Parliament in its report 'Public Liability Issues Facing Local Councils' November 2000, recommendation 9 at 10. 127 See Note 3 at 577-578. 128 See Note 3 at 578-582. 129 Note 57 at 259.
7 (^04) Barbara Ann Hocking and Stewart Muirhead
... enlisting tort law to combat executive and administrative abuse of power and not allowing public officers, who must always act for the public good, to be assailed by unmeritorious actions. The precise boundaries to the tort of negligence in the context of public and highway authorities remain fluid, although it can be asserted that: Where a public authority or its agents are found to be under a duty in negligence, the class of acts which will constitute breach are almost certainly broader than, and comprehensively include, the class of acts which would support a misfeasance claim.13'
IV. Advocates' immunity
1. An Iiztroduction As Warne explains, 'The law's traditional response to dealing with professional claims arising out of litigation has been the forensic immunity. Such claims against solicitors were traditionally rare: the outcome of litigation was sensibly generally characterised primarily as the result of counsel's exertions.'132A key aspect is that for more than two centuries barristers have enjoyed an immunity from actions in negligence. On 20 July 2000 the House of Lords decided that 'the immunity was anachronistic and ditched it'133in Arthur J S Hall (a firm) v ~ i r n 0 n s. l ~ ~The House took the view that the concerns that justify the retention of immunity could no longer be justified in the light of contemporary professional standards. In fact there were benefits to be gained from ending immunity. A legal principle that has rarely arisen before the House of Lords but has been subject to considerable comment, was changed some thirty years after first being 'accorded judicial re~ognition."~~ Lacking a statutory basis, the immunity first had its 'extent and limits' determined when the Lords decided Rondel v ~ o r s l e ~. ' ~ ~The House of Lords upheld the immunity on public policy grounds, namely: that the administration of justice required fearless pursuit by barristers of their duties to the court, rather than defensive pursuit of their duties to their clients, that it is contrary to the public interest to retry original actions, and finally that the 'cab-rank' principle of barrister service is best safeguarded by not encouraging vexatious litigants.
Eleven years later Saif Ali v Sydney Smith itch ell'^^ was decided, and while it did
not directly challenge the immunity, it restricted the scope of it. The House of Lords confirmed the public policy basis to the immunity, but did not consider that all the public policy rationales articulated in Rondel v Worsley justified the immunity.139The House confirmed that the common law immunity applied to both solicitors and barristers with respect to pre-trial and advocacy work, again for public policy reasons. Despite confirmation by statute of its application to both barrister and solicitor advocacy, the precise scope of the pre-trial work immunity was not defined by either judge or statute, which uncertainty 'spawned a great deal of case law, in order to test the outer limits of the immunity."40 Subsequent case law decided that the immunity did not apply to such failures at not giving notice of appeal at the proper time, not advising as to appeal
130 In 7?1ree Rivers [2000] 3 All ER 1 at 56. 131 Note 57 at 258. 132 Warne S 'Compromise of litigation and lawyers' liability: Forensic immunity, litigation estoppels, the rule against collateral attack, confidentiality and the modified duty of care' (2002) 10 Torts Law Jounzal 1 at 31. 133 Note 132. 134 [2000] 3 All ER 673. 135 Seneviratne M, 'The rise and fall of advocates' immunity' (2001) 21 (4) Legal Studies 644 at 644. 136 [I9691 1 AC 191. 137 Note 135 at 646. 138 [I9801 AC 198. 139 Note 135 at 651. 140 Note 135 at 647.
106 Barbara Ann Hocking and Stewart Muirhead
Human Rights to consider the compatibility of immunity. Because the House of Lords swept away immunity Lord Hoffmann did not need to consider the compatibility of immunity with article 6 of the Convention, which provides 'in the determination of civil rights and obligations, everyone is entitled to a hearing by a tribunal." In Australia, at common law, this form of immunity from claims still exists. And as Warne reminds us: Despite the clearest of indications from the High Court in Boland v Yates Property Corporation Pty Ltd that forensic immunity is here to stay, people continue to predict the demise of the immunity in Australia. 147 Apart from the operation of the immunity, lawyers are liable for professional negligence in much the same way as members of the medical profession. Paradoxically, legal commentators have noted an increasingly interventionist approach taken by the courts in
assessing the liability of medical ~ractiti0ners.l~~In Rogers v hi taker'^^ an eye specialist
was considered to have breached the duty of care to a patient by failing to warn of an unlikely condition that could result from a cosmetic eye operation. The high-risk operation was performed by a highly competent specialist ophthalmic surgeon. The highly unlikely complication that ensued - so-called 'sympathetic blindness' of the patient's 'good' eye
- was so unlikely that medical witnesses testified that they would not have thought to warn of it. Yet the High Court considered the specialist in breach of the duty of care owed, noting the particular anxiety of this patient vis a vis any possible interference with her 'good' eye. The case has been much written about. Given the expectations from service providers today, is it right that 'high risk' legal advocates can claim immunity whilst 'high risk' surgeons may not?150 The authors accept that advocates face ethical duties to the court, but so too do doctors who have duties to their patients but must also adhere to an ethical code. An example being where an AIDS infected patient asks a consultant not to reveal his condition to his wife, general practitioner and other healthcare officials. Should a doctor have immunity in that case? If not, then why should the advocate? 3. Recent developments There have been a number of interesting recent decisions in Australia and England. This section takes a closer look at the public policy arguments that justify advocates immunity from suit in the common law world. A closer review of those arguments reveals that by today's standards, much of the argument is no longer relevant, although Warne's point that the emergence of the rule against collateral attack as a separate doctrine rather than its being 'one of the props for the doctrine of forensic immunity'151 is an important one in any reappraisal. Whilst immunity from suit may originally have been judicially created, Lord Reid observed that public policy is not immutable, and is open to change where necessary.
a. The position in England The fundamental question in Arthur JS Hall & Co v Simons was whether the current immunity of an advocate in respect of and relating to, the conduct of legal proceedings, as enunciated in the House in Rondel v Worsley, and explained in SaifAli v Sydney Mitchell
146 See further: Lord Hoffman, 'Human Rights and the House of Lords' (1999) 62(2) Modem Law Review 159 at
147 Note 132 at 203. 148 Hocking BA and Muirhead S, 'Warning Warning Warning - all doctors!' (2000) 16(1) Professional Negligence
149 (1992) 109 ALR 625. 150 See further: 'Time to abolish lawyers immunity from suit' by Simone Brookes. 151 Note 132 at 167.
Forensic Immunity to Negligence Actions 707
& Co should be maintained in England?152Mr Simons said that his solicitors were negligent in allowing him to become involved in lengthy and expensive litigation when they should have advised him to settle. The solicitors' answer was that even if they were negligent, they could not be sued and sought to claim immunity under the common law principle which prevents them from being sued for negligence. Erosion of immunity began after the decision in Hedley Byme & Co. Ltd v Heller & Partners ~ t d ' ' ~ where the House of Lords considered that, even without a contract between a barrister and a client, a person who negligently performed a professional duty which was undertaken, could be sued in tort. In the light of that decision, immunity was re- examined in Rondel v Worsley. A reshaped version of the immunity rule came into existence which was based upon what the House of Lords perceived to be in the public interest for the administration of justice. The new immunity was confined to actions concerned with the conduct of litigation, and it applied to solicitors.
The divided loyalty argument Lawyers conducting litigation owe a dual duty, both to their clients and to the court. The duty owed to the court is to ensure the proper administration of justice, for example, an advocate must present to the c o w authorities whether for or against their case. To a lay client, this may seem bizarre and gives rise to an argument that if immunity is abolished, will it effect the behaviour of the advocate? The difficulty arises in marginal cases where advocates would prefer the interests of their clients against the interests of justice to avoid the possibility of legal action. Because advocacy is an art, errors of judgment may come back to haunt the advocate in the form of a vexatious claim by a difficult client. Whilst the House of Lords considered that advocates are engaged in an activity of public importance, they did not think that they should be unique among professionals. A comparison was made with other professions, such as the doctor who is often engaged in activities which require delicate judgment and divided loyalties. The real issue was whether removing the immunity would have a significantly adverse effect on the advocate's duty. Advocates operate in an open public arena, which is controlled by an intermediary, the judge. Generally, serious lapses will be rare and the judge can intervene before serious damage is done. Whether a solicitor or barrister, both professions have a comprehensive set of rules administered by their respective professional bodies. With this as a backdrop, it is fair to say that advocates have a clear understanding of their obligations whilst operating in their 'controlled public arena'. In reality the situation differs little from the surgeon's operating theatre, in terms of responsibility and obligation.
The witness analogy argument It is well established that a witness is absolutely immune from liability for anything which he or she says in court. This also applies to the judge, counsel and the parties. The idea is to encourage persons to express themselves freely, but should this apply to advocates? The House of Lords concluded that it was not enough to say that immunity relating to court proceedings simply avoided stress and tensions. It was necessary to go further and explain 'why' the public interest requires that a particular participant, in this case the advocate, should be free from the possibility of being sued. A witness owes no duty to anybody in respect of the evidence given to the court, their only duty is to tell the truth. This cannot be said of advocates. As suggested earlier in this article, there is a positive duty on the advocate to present the court with authorities that are adverse to their client's position. The advocate is the only person involved in the trial process who is liable to be
152 as per Lord Steyn. 153 [I9641 A.C. 465.
Forensic Immunity to Negligence Actions 709
conduct."61 In that case, a firm of solicitors and a barrister were sued by their client who were engaged to act for Yates Property Corporation in the conduct of a compensation claim before the Land and Environment Court of New South Wales. The relevant issue here is that Yates sued its legal team asserting that it had suffered financial loss by reason of the fact that the 'special value' aspect of its claim for compensation had not been adequately presented. As a result, there was a breach of professional duty by its legal team. The general criticism was that the lawyers failed to identify and pursue by way of evidence and argument the 'special value' argument. One of the arguments raised by the legal team was that they were entitled to rely upon the principle of immunity from action. The finding of negligence by the Full Court of the Federal Court was overturned. Because there was no negligence on the part of the legal team, the claims for immunity from suit which were based upon the decision in Giannarelli v did not need to be resolved by Gleeson CJ. However, Qrby J did not leave the case without expressing some interesting views on barristers and solicitors7 immunity. He questioned whether the holding in Giannarelli should be reviewed to abolish entirely the immunity from suit of barristers and solicitors, thereby rendering them all liable to their clients for default in the same way as members of other professions.163By way of alternative, he proposed that any such immunily be confined to the conduct of a barrister or solicitor advocate in relation to criminal proceedings. Interestingly, some members of the House of Lords in Arthur JS Hall v Simorzs would have agreed with this proposition but the majority in Hall decided to end immunity in both civil and criminal proceedings. The judgment suggests that the High Court's attitude to immunity is open to change. Many of the public policy arguments of holding immunity were seen to be out of place in the egalitarian society of ~ u s t r a 1 i a. l ~ ~The court accepted that the welfare of litigants depended upon the accuracy and comprehensiveness of advice given. In today's trans- national world, the advice of legal practitioners in several jurisdictions is often obtained, most of them not being able to claim immunity from suit in the case of negligently, mistaken advice. Although Kirby J's judgment was handed down prior to the decision in Hall, he foreshadowed much of the argument raised by the Lords, in particular he noted that many of the reasons for maintaining immunity no longer bear up to close scrutiny. Similarly, the decision in Rees v Sinclair was considered difficult to apply in practice and allowed the lower courts to expand the rationale beyond that which was in the public's best interests. Qrby J questioned whether the holding in Giannarelli applied to knock out the claim by Yates against the lawyers. Giannarelli was confined to providing legal immunity to a legal practitioner in respect of 'in court7 conduct only. The 'intimate connection' test was criticized and considered 'impermissibly vague7. In view of that finding, Kirby J considered that the solicitors' claim to immunity failed. As far as the barristers were concerned, their claim for immunity was also rejected because Yates' claim did not rest upon any decision made by its barristers in court during the actual conduct of the trial in the first instance. If Australian law is to change further, it is likely that there will be recognition of the point made by the Chief Justice in Giannarelli v Wraith: 'that collateral attack of judgments by satellite litigation must be guarded against by an imm~nity."~"
161 Note 132 at 199. 162 (1988) 165 CLR 543. 163 Note 160 at 118. 164 Note 160 at 133. 165 Note 132 at 203 citing (1988) 165 CLR 543 at 557.
7 70 Barbara Ann Hocking and Stewart Muirhead
Witness and expert immunity
I. Immunity within court proceedings In Northern Territory of Australia v ~ e n ~ e l l ~ ~the plaintiffs who owned cattle stations in the Northern Territory alleged they had suffered loss because two government inspectors had imposed restrictions forbidding the movement of their capital as part of a government sponsored campaign aimed at eradicating brucellosis in cattle in Australia. The plaintiffs brought an action for damages against the government office alleging negligence, misfeasance in public office and unlawful interference with their economic interests and property rights.167In the High Court, the plaintiff pressed their claim of misfeasance in public office contending that the tort should not be limited to cases of malice or actual knowledge, but should include constructive knowledge. The High Court allowed the government's appeal and refused to extend liability for misfeasance to constructive kn0w1edge.lIn Mengel, Deane J enumerated the elements of the tort of rni~feasance.' This section of the paper considers those acts committed by a 'public officer'.170The difficulty in distinguishing public office and public employment has given rise to some debate.171There are two reasons for this distinction, firstly employees with minimal public responsibilities are saved from the heavy consequences attracted to holding public office, and secondly persons who may be regarded as discharging public duties because they happened to be involved in contracting with a governmental or public authority are excluded from the ambit of public 0 f f i ~ e. l ~ ~ Should judicial office holders be classified as public officers for the purposes of this tort? It has been suggested there are strong policy arguments in favour of judicial There is a legitimate concern that allowing actions against judicial officers might give rise to a practice of 'disappointed litigants attempting to re-litigate issues by malung allegations of tortious misconduct by judges'.174The requirement that the plaintiff must prove malice, knowledge of absence of power or reckless indifference strikes an appropriate balance so far as judges of inferior courts are concerned. It would seem that judges of superior courts which determine their own jurisdiction cannot, almost by
166 (1995) 185 CLR 307. 167 These arguments were advanced based on 'the rule of law' and liability under the principle in Beaudesert Shire Council v Smith (1966) 120 CLR 145. 168 It was held that as the facts only established that the inspectors were acting without legislative authority in giving the directions, in the absence of a finding that they had not acted in good faith or had acted with knowledge as to the lack of power or with reckless indifference as to the availability of power, no action for misfeasance in public office lay against them (or the government). Compare to the House of Lords decision in Three Rivers District Council v Bank of England [2000] 3 All ER 1. 169 I. as invalid or authorised act; 11. done maliciously; 111. by a public officer; IV. in the reported discharge of his or her public duties: V. which caused loss or harm to the plaintiff. 170 The meaning of a public officer was not in issue in Mengel as it appears to have been accepted that the stock inspectors were government officers. The majority therefore did not consider this element. However, Brennan J considered that a public officer could be identified as a person 'who is appointed to discharge a public duty, and receives a compensation in whatever shape, whether for the crown or otherwise'; see also Lord Hobhouse in Three Rivers who noted that the description 'holder of a public office' is a broad concept. 171 See Finn PD, 'Public Officers; some personal liabilities' (1977) 51 Australian Law Journal 313, 314. See also Finn PD and Smith KJ 'The Citizen, The Government and Reasonable Expectations' (1992) 66 Australian Law Journal 139; see generally PD Finn (Ed) 'Essays on Law and Government' Volume 1, Principles and Values, Law Book Company, Sydney, 1995. 172 See note 171. 173 Harvey v Derrick (1995) 1NZ LR313; see the discussion by Manning J, 'Torts' [I9771 New Zealand Law Journal
174 In Rawlinson v Rice [I9981 1 NZLR 454 the Court of Appeal was unwilling to alter the common law position. At the time parliament was considering the summary proceedings amendment (No. 2) bill which dealt with the issue; see further Cockburn T and Thomas M, 'Personal Liability of Public Officers in the Tort of Misfeasance in Public Office - Part 1' (2001) 9(1) Torts Law Journal 80.
