Public authority liability for negligence in the post-Ipp era: sceptical reflections on the 'policy defence.'(Ipp Review of the Law of Negligence: Final Report) (Australia)

• Jurisdiction: Australia
• Date: 01 August 2016
• Author: Bell-James, Justine

CONTENTS I Introduction II Public Authority Negligence: The Common Law Background III The Ipp Review Proposal A 'Public Function' B 'Policy Decision' C 'Personal Injury or Death' D 'Negligent Performance' E 'So Unreasonable that No Reasonable Public Functionary in the Defendant's Position Could Have Made It' IV The Statutory Reforms A Three Forms of Provision, Not One B The 'Policy Defences' 1 Queensland, Tasmania and the Australian Capital Territory 2 Victoria 3 New South Wales 4 Western Australia V Back to the Drawing Board A Option 1: Revert to the Common Law B Option 2: Uniform Legislation and the Bolam Standard VI Conclusion I INTRODUCTION

Public authority liability for negligence has long been a complex area of the common law, but its convolution has been further exacerbated in recent years by the raft of statutory provisions enacted in Australia in the wake of the 2002 Review of the Law of Negligence: Final Report ('Ipp Review'). (1) The Ipp Review itself was commissioned by Commonwealth, state and territory governments as a reaction to the spiralling cost of liability insurance--a phenomenon that was itself (not uncontroversially) (2) attributed to the unpredictability of negligence law. The Ipp Review Panel was tasked with finding ways to curtail the problem by 'developing consistent national approaches' (3) to negligence liability as a whole. Within this remit, one of its more specific terms of reference was to 'address the principles applied in negligence to limit the liability of public authorities'. (4)

The Panel's ultimate recommendation was for the introduction of a so-called statutory 'policy defence' (5) for public authorities throughout all Australian jurisdictions. The proposed 'defence' was not intended to provide complete immunity against civil liability, but instead to lower the standard of care required of authorities in respect of certain types of 'policy' decision; that is, conscious decisions based substantially on 'financial, economic, political or social factors', made in the performance or non-performance of their public functions. (6) The standard proposed borrowed its terminology from the public law concept of reasonableness stipulated in Associated Provincial Picture Houses Ltd v Wednesbury Corporation ('Wednesbury'), (7) so that liability for a policy decision would arise only if the decision was so unreasonable that no reasonable public authority could have made it. (8)

This recommendation proved to be the catalyst for a subsequent wave of uncoordinated and inconsistent law reform across Australia, much of which has shown little fidelity to the spirit or detail of the Panel's original proposals. The result is that not only is there now no single approach to the question of public body negligence liability in Australia, but such legislative provisions as have been introduced bear little resemblance to the proposals on which they were apparently based. In some jurisdictions (South Australia and the Northern Territory), no special policy defence has been enacted at all and the negligence liability of public authorities continues to be regulated exclusively by common law principles. (9) The result is an unpalatable farrago of disparate norms.

Some might regard this hodgepodge of rules as understandable in a federal system, but it is clearly not in accord with the proclaimed preferences of governments in the run-up to the Ipp Review. At best, the random result can be regarded as a pragmatic sacrifice of original preferences to the exigencies of the time, and to the perceived need for governments to make swift, unilateral, visible, public responses to crisis. At worst, however, it is irrational for governments to emphasise the importance of national consistency on the one hand, and then to legislate multilaterally, without regard to this aim, on the other. In our view, it is also undesirable as a matter of moral principle that the private interests of Australian citizens which are as basic as the integrity of their person, property and economic welfare should receive radically different protection in negligence law from state to state. It is not, however, strictly necessary to take this view for one to react sceptically to the recent wave of reforms, as we intend to show. Sadly, they contain sufficient deficiencies and interpretive difficulties to justify independent criticism in their own right.

In this article, we explore the problems inherent in the various statutory provisions now governing public body liability in Australia and recommend a return to the drawing board. We argue that, whilst the negligence liability of public bodies was certainly never straightforward at common law, the recent reforms have further confused, convoluted and fragmented matters to an unacceptable degree--to such an extent, indeed, that we should now seriously consider either discarding them entirely; or reengaging with the field in a concerted way that is likely to produce a more uniform, rational solution.

Part II of the article describes the common law background against which the Ipp Review proposals and subsequent statutory reforms are set. The purpose here is to identify some of the difficulties, but also some of the sophistications of the original, common law approach to public body liability. This serves as a backdrop to our discussion of the Ipp Review's proposed 'policy defence' in Part III. Part IV then critically appraises the various legislative responses to the Ipp Review in light of their recent judicial interpretation. It details the extent of the legislation's inconsistencies, interpretive difficulties and infidelities to the Ipp Review vision and illustrates the problematic state of the current law when viewed from either the microscopic or macroscopic point of view.

Part V advocates a return to the drawing board. Our aim in this final, concluding part is not to set out a fully developed proposal for reform, but to state clearly the reasons why there is a need for change, and to canvas two possible solutions that now merit further serious consideration. Without a proper denouement of the problems of the field as it stands, there is little prospect of governments making any change, not least because their own interests are captured. The first option for reform involves a more concerted and careful process of uniform legislation that would endorse a single, cautiously deferential approach to negligence liability for discretionary public decisions, mimicking the approach that courts currently take toward other types of specialised, expert decision in private law. This approach assumes a Diceyan view of the relationship between citizen and State and therefore sits comfortably with the traditions of Australian private law. (10) It also, however, assumes the possibility of national consensus between governments on matters of liability that affect their budgets and behaviour, which is a weaker premise. The second, more pragmatic solution is to completely abolish all existing versions of the 'policy defence' and return the question of public body liability for negligence entirely to the wardship of the common law. This may seem an extreme and startling suggestion--one that returns us, full circle, to our starting point--but it is one that may well be warranted, we suggest, by the difficulties that the legislation currently presents.

II PUBLIC AUTHORITY NEGLIGENCE: THE COMMON LAW BACKGROUND

Prior to the Ipp Review, the negligence liability of public authorities in Australia was regulated almost entirely by the common law. (11) This remains the case in South Australia and the Northern Territory. (12) Furthermore, the common law remains relevant even in those jurisdictions where statutory reform has occurred, because the reforms do not codify the law, but merely supplement and modify the common law approach.

One point that does not seem to have been fully appreciated by the governments that commissioned the Ipp Review is that public authority liability for negligence has always been limited to a significant degree by the traditional requirements that a plaintiff prove the existence and breach of a duty of care. In fact, courts' willingness to impose legal duties of care on public authorities has historically been constrained by a number of serious judicial concerns attending an authority's status and functions. These relate to: (i) the 'justiciability' of certain types of discretionary public policy decision involving the allocation of resources between competing social ends; (13) (ii) the fact that a body's failure may consist of a 'pure omission' to prevent harm more immediately caused by a third party or natural hazard; (14) (iii) the potential incompatibility of any duty of care with the intentions and purposes of a statute under which the public body acts; (15) (iv) the apprehension that the duty may induce 'defensive practices', or place decision-makers in impossible positions of legal or ethical conflict between competing responsibilities; (16) (v) worries that 'indeterminate' or 'massive' liabilities might result from a single, wrong decision; (17) (vi) the need to ensure that negligence law develops coherently with other legal principles (including other principles of private law, but also public law processes for the review of decisions through statutory appeals and judicial review); (18) and (vii) a concern--voiced in increasingly strong terms by the High Court of Australia in recent years--that an appropriate balance is struck between the responsibility of public agencies to protect individuals and the latter's duty (19) to look out for themselves. (20)

Limiting public body liabilities so as coherently to incorporate respect for all of these concerns has admittedly not been without its difficulties. The appropriateness of some of these has been questioned (21) and their influence upon courts' reasoning on duty questions can produce law with soft edges. The concerns...