Walker, Robert --- "Developing the Common Law: How Far Is Too Far?" [2013] MelbULawRw 13; (2013) 37(1) Melbourne University Law Review 232
CRITIQUE AND COMMENT
DEVELOPING
THE COMMON LAW:
HOW FAR IS TOO FAR?
LORD ROBERT WALKER[*]
This piece examines situations in which judges are called upon to develop and modify the common law. By reference to a number of recent developments in the United Kingdom and Australia, namely the law of evidence and common law privilege, the right to privacy, and causation in the tort of negligence, the author elucidates the manner and extent to which judges have and are able to develop the law in the absence of parliamentary intervention.
CONTENTS
I INTRODUCTION
In Kleinwort Benson Ltd v Lincoln City Council, Lord Goff addressed the question of when a judge[1] should effect changes in the common law:
Nowadays, he derives much assistance from academic writings in interpreting statutes and, more especially, the effect of reported cases; and he has regard, where appropriate, to decisions of judges in other jurisdictions. In the course of deciding the case before him he may, on occasion, develop the common law in the perceived interests of justice, though as a general rule he does this ‘only interstitially,’ [that is, by filling in gaps] to use the expression of O W Holmes J in Southern Pacific Co v Jensen [1916] USSC 71; (1917) 244 US 205, 221. This means not only that he must act within the confines of the doctrine of precedent, but that the change so made must be seen as a development, usually a very modest development, of existing principle and so can take its place as a congruent part of the common law as a whole. ...
Occasionally, a judicial development of the law will be of a more radical nature, constituting a departure, even a major departure, from what has previously been considered to be established principle, and leading to a realignment of subsidiary principles within that branch of the law.[2]
These are just two short extracts from a luminous speech which led the way in making a radical change in the English common law rule as to mistake of law. The speech as a whole is a good introduction to the topic of this piece. Lord Goff was an eminent legal scholar as well as a distinguished judge, and as one of the founding fathers of the English law of unjust enrichment he had strong feelings about mistake of law. He regarded the traditional English rule on mistake of law as antiquated, irrational, and out of step with Commonwealth authority. Nevertheless, in his speech he carefully considered not only the arguments in favour of change, but also a number of principled objections to significant changes in the common law being made by judges.
The objections include, first, the uncertainty that may arise as to the scope and limits of any change. Judges are not legislators, and even the highest appeal court must hesitate before laying down the law in a way that goes far beyond the facts of the particular case before it. Second, there is the courts’ lack of access and capacity to process the complex economic, social and scientific data by which much modern legislation is influenced. Third, there is the declaratory (or to be realistic, retrospective) character of judge-made changes in the law. A retrospective change in the law may cause hardship, possibly amounting to injustice, to large numbers of people who are not concerned in the litigation. Whether the court can avoid such hardship by directing that its judgment shall be prospective only — that is, that its effect should be limited to future events — is an issue of some difficulty. The fourth objection is the most important of all, and to some extent it underpins all the others. In a representative democracy, changes in the law are in principle a matter for Parliament, often acting on the advice of an expert law reform commission, and not for unelected judges.
I want to examine these points by reference to a number of topics on which the United Kingdom’s highest appeal tribunal — the House of Lords until mid-2009, and since then the Supreme Court — has been asked to make significant changes in the common law. In some of those cases it has declined to do so. In others it has made significant changes, and in at least one of them — the mesothelioma cases starting with Fairchild v Glenhaven Funeral Services Ltd (‘Fairchild’)[3] — we may now be wondering whether we took the right course. That is partly because of a swift parliamentary intervention which greatly widened the scope of the judge-made change in the common law. Some may see the episode as a cautionary tale of one arm of government not knowing or understanding what the other arm was about.
In speaking of the common law, I do not exclude the body of non-statutory law that we call equity. One of the areas that I shall touch on briefly is concerned with developing the principles and doctrines of equity. It might perhaps be said that the biggest of all the questions as to the future development of non-statutory law is whether it is possible and desirable to achieve (I hesitate to use the ‘f’ word) the fusion of common law and equity. That is a complex and controversial topic, not least in Australia,[4] and you will forgive me if I do not even think of going there in this paper.
Most of the topics that I shall be discussing are issues that have arisen in Australia and other Commonwealth jurisdictions, as well as in England. This is a reminder that we can no longer refer, if we speak accurately, to the ‘common law’: we have the common law of Australia, the common law of (anglophone) Canada, the common law of England, and the common law of New Zealand, quite apart from the United States of America. This was explicitly recognised in Invercargill City Council v Hamlin[5] in 1996, when New Zealand’s court of last resort was still the Judicial Committee of the Privy Council. In an appeal about the tortious liability of official building inspectors for latent defects in buildings, the Judicial Committee recognised that the common law of New Zealand had diverged from English law, and that it was the former that the Privy Council had to state and apply:
But in the present case the judges in the New Zealand Court of Appeal were consciously departing from English case law on the ground that conditions in New Zealand are different. Were they entitled to do so? The answer must surely be ‘Yes’. The ability of the common law to adapt itself to the differing circumstances of the countries in which it has taken root, is not a weakness, but one of its great strengths.[6]
The judgment went on to refer to the position in Australia[7] and Canada.[8]
II THE LAW OF EVIDENCE AND COMMON LAW PRIVILEGE
The first topic I want to look at is the law of evidence, and in particular two common law privileges which have been under scrutiny in recent years: witness privilege as enjoyed by expert witnesses, and the principle against self-incrimination, especially as involved in civil proceedings arising out of large-scale commercial fraud or piracy of intellectual property rights.
The justification for the general immunity of witnesses is to enable them to give their testimony frankly and fearlessly, subject only to the criminal sanction of perjury. In relation to expert witnesses, the privilege originally served mainly as a protection against a civil action for defamation brought by someone on the other side who was aggrieved by the expert’s evidence. In the 19th century case of Seaman v Netherclift,[9] the defendant was a handwriting expert who had given evidence in a probate action that the propounded will was a forgery. The judge was critical of his evidence and the jury found for the validity of the will. Shortly afterwards, Mr Netherclift gave evidence for the defence in a criminal case and was asked in cross-examination if he was aware of the judge’s comments in the earlier case. The cross-examiner then stopped but the witness went on to exclaim, ‘I believe that will to be a rank forgery, and I shall believe so to the day of my death.’[10] For these remarks, Mr Seaman, an attorney who had witnessed the will in question, sued him for slander. The judge, Lord Coleridge CJ, said that his remark had been ill-advised but held that he was entitled to witness immunity.
It was only in the second half of the 20th century, with the development of tortious liability for negligent misstatement, that expert witnesses found themselves liable to be sued, not by the other side, but by their own lay clients. The expert might have been instructed primarily to advise on finding a solution to a particular problem, rather than solely with a view to giving evidence in court.[11] However, that difficult demarcation problem did not arise in Jones v Kaney (‘Jones’).[12] Mr Jones had suffered physical and psychiatric injuries in a road traffic accident. Liability was admitted, but quantum was in dispute, especially in relation to post-traumatic stress disorder. Ms Kaney, a consultant clinical psychologist, was instructed as an expert witness for Mr Jones. She discussed the matter with the other side’s expert on the telephone, and then signed a joint report, drafted by the other expert, which was very damaging to her client’s case. She said that she had been put under pressure to concur in statements which did not represent her professional opinion. Mr Jones was not allowed to make a last-minute change of expert, and had to settle for a relatively low sum. He sued Ms Kaney for breach of a duty of care owed to him.
Those were the circumstances in which Ms Kaney’s claim to witness privilege was challenged in a leapfrog appeal to the Supreme Court. The arguments for maintaining the privilege were the traditional ones already mentioned: the need to protect honest witnesses from harassment, and encourage frank and fearless testimony. On the other side was the need to avoid injustice. As Lord Wilberforce had said over twenty years before, immunity from action ‘depends upon public policy. In fixing its boundary, account must be taken of the counter policy that a wrong ought not to be without a remedy.’[13]
That was said in the context of advocate’s immunity. In Jones, there was a difference of opinion in the Court as to how far there is a helpful analogy between these two types of immunity. The duty of an advocate is obviously different from the duty of a witness. Lord Hoffmann said in Arthur J S Hall & Co v Simons that a witness’s ‘only duty is to the tell the truth.’[14] But one feature that the issues of advocate immunity and witness immunity have in common is the difficulty of drawing a line between activity in (or closely related to) court and preliminary activity of an advisory or remedial nature.
The outcome was a decision, by a 5:2 majority, to end the privilege for expert witnesses. The majority took the view that the privilege can no longer be justified for remunerated professionals who are able to protect themselves by insurance, and that there is no strong reason to think that the withdrawal of immunity would have a chilling effect on the readiness of professional men and women to act as expert witnesses.[15] However, I should add that some commentators have suggested that, even before Jones, paediatricians have been less willing to give evidence in cases of suspected child abuse, in consequence of Meadow v General Medical Council[16] decided by the Court of Appeal in 2006. In that case, witness immunity was held not to protect an eminent paediatrician from being struck off the register after he had given evidence for the prosecution at the trial of Mrs Clark. She was convicted in 1999 of the murder of her two infant sons, who died in their cots in 1996 and 1998. Her conviction was eventually set aside. The paediatrician’s evidence was gravely flawed in that he gave unsound evidence about statistics and probability, topics in which he had no expertise.
In the important case of D’Orta-Ekenaike v Victoria Legal Aid (‘D’Orta-Ekenaike’),[17] the majority of the High Court of Australia, on appeal from the Court of Appeal of Victoria, considered and affirmed the immunity of advocates.[18] The judgments are lengthy and full of interest, but for present purposes I note that the decision also reaffirms witness immunity, and sees both immunities as based on the need for finality in litigation. This is emphasised in the judgment of the plurality: ‘A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances.’[19]
This is in striking contrast to the judgments in Jones, in which finality and the need to avoid collateral litigation receive only a passing mention in one judgment.[20] Burrell v The Queen is another recent decision of the High Court of Australia which attaches special weight to finality.[21] I do not recognise the same tendency in recent United Kingdom jurisprudence, possibly because we have had so many serious miscarriages of criminal justice, including not only Mrs Clarke but also the Birmingham Six[22] and the Guildford Four.[23]
In his dissenting judgment in D’Orta-Ekenaike, Kirby J made some observations that might be thought to anticipate the majority view in Jones:
I am far from convinced that a witness should enjoy an absolute immunity from suit in respect, say, of a report, prepared for a fee out of court on behalf of a party where that report contains negligent mistakes or omissions that cause reasonably foreseeable damage to that party.[24]
He also agreed with some observations of Lord Hoffmann as to whether the issue of advocate’s immunity should be left to Parliament: ‘I do not think that your Lordships would be intervening in matters which should be left to Parliament. The judges created the immunity and the judges should say that the grounds for maintaining it no longer exist.’[25]
In 2007, the immunity of an expert witness was confirmed by the Court of Appeal of New South Wales in Commonwealth v Griffiths.[26] Mr Griffiths had been convicted at trial of manufacturing a prohibited drug, methcathinone. His conviction, which was set aside on appeal, was based on expert evidence in the form of a certificate of analysis signed by Mr Ballard, an analyst employed by the Australian Government Analytical Laboratories. Mr Griffiths sued Mr Ballard and his employer. His pleaded case was that Mr Ballard had manipulated the analysis, in breach of a duty of care, by recalibrating his apparatus so as to obtain a positive result, although dishonesty was not alleged. The Court of Appeal relied heavily on D’Orta-Ekenaike in upholding the striking out of the claim. It saw the debatable issue as how far back in time the immunity reached. In the leading judgment, Beazley JA considered at length the English case of Evans v London Hospital Medical College (‘Evans’).[27] That case concerned a claim against a medical school and three pathologists who were potential expert witnesses in a criminal prosecution for murder. Mrs Evans was charged with murdering her infant son on the basis of faulty forensic evidence, as a result of contamination in the laboratory of organs taken from the child’s body. In the end, the prosecution offered no evidence against her as a result of a conflicting report by a more experienced pathologist, but Mrs Evans had to endure a lengthy remand. Quite apart from Jones, I regard Evans as at best a borderline decision, although it was approved by the House of Lords in a group of cases concerned with the liability of local authorities for deficiencies in their protection and care of children.[28]
Judges in all common law jurisdictions have been more reluctant to interfere with the privilege against self-incrimination. It too was, I suppose, created by judges (though as the distinguished editor of the Australian edition of Cross on Evidence comments, its origins are remarkably obscure).[29] It has historically had a central position in English law and civil liberties. It has been described as ‘deep rooted in English law’.[30] But as Lord Mustill observed in 1992 in an appeal about the statutory powers of the Director of the Serious Fraud Office:
Nevertheless it is clear that statutory interference with the right is almost as old as the right itself. Since the 16th century legislation has established an inquisitorial form of investigation into the dealings and assets of bankrupts which is calculated to yield potentially incriminating material, and in more recent times there have been many other examples, in widely separated fields, which are probably more numerous than is generally appreciated.[31]
Lord Mustill went on to explain that these statutory exceptions differed in their aims and their methods, including their drafting techniques.[32] At that date some, but not all of them, provided that information obtained under compulsion should not be admissible in any criminal proceedings. This safeguard was extended to the others, by amending legislation, in advance of the coming into force of the Human Rights Act 1998 (UK) c 42 (‘HRA’).
In a recent appeal to the Supreme Court, we were shown a list of 25 statutory exceptions to immunity from self-incrimination, and counsel did not guarantee that the list was exhaustive.[33] The majority of these have the general legislative aim of obtaining information for the purposes of civil proceedings (including insolvency proceedings) arising out of commercial fraud or copyright piracy. In these cases, there is a strong countervailing public interest in victims of serious fraud or piracy obtaining an effective civil remedy. In areas where the problem has not been addressed by Parliament, attempts by judges to fashion equivalent non-statutory protection may run into difficulties, though these may not be insurmountable.[34] As Lord Neuberger MR put it in the Court of Appeal in a recent case which was concerned with breaches of duties of confidence by phone-hacking:
I would take this opportunity to express my support for the view that PSI [privilege against self-incrimination] has had its day ... provided that its removal is made subject to [a safeguard against the admission of the material in criminal proceedings]. Whether or not one has that opinion, however, it is undoubtedly the case that, save to the extent that it has been cut down by statute, PSI remains part of the common law, and that it is for the legislature, not the judiciary, to remove it, or to cut it down.[35]
The position in Australia is similar. Any curtailment of a general civil liberty is pre-eminently a matter for Parliament, and although there are numerous statutory exceptions, they must be in clear words. As was said in the High Court in Sorby v Commonwealth:
The privilege against self-incrimination is deeply ingrained in the common
law. The principle is that a statute will not be construed to take away a common
law right, including the privilege against self-incrimination, unless a legislative
intent to do so clearly emerges, whether by express words or necessary
implication.[36]
III THE RIGHT TO PRIVACY
I now turn to substantive law, and I want to begin with the extraordinarily swift development of the English law of personal privacy. The speed of change has been remarkable, not least because in Wainwright v Home Office (‘Wainwright’),[37] decided in 2003, the House of Lords firmly rejected an invitation to extend the common law, and gave as one of their reasons the coming into force of the HRA. Wainwright was a claim by a middle-aged mother and her son (a young man with learning difficulties) who had been humiliatingly strip-searched when visiting her other son in prison. These events occurred before the HRA came into force on 2 October 2000. Lord Hoffmann observed:
There seems to me a great difference between identifying privacy as a value which underlies the existence of a rule of law (and may point the direction in which the law should develop) and privacy as a principle of law in itself. ... [T]his is an area which requires a detailed approach which can be achieved only by legislation rather than the broad brush of common law principle. Furthermore, the coming into force of the Human Rights Act 1998 weakens the argument for saying that a general tort of invasion of privacy is needed to fill gaps in the existing remedies.[38]
But paradoxically, as events have turned out, the HRA has been the driving force behind this development of the common law. The HRA imposes a statutory duty on public authorities not to act in a way that is incompatible with a Convention right (a right, that is, under the European Convention on Human Rights (‘ECHR’)).[39] But the national press and its suppliers, the paparazzi and the private eyes, powerful as they are, are not public authorities, and so the HRA did not provide a direct remedy against even the most blatant invasions of privacy by the press.
But an indirect route emerged. During the interval of about two years between the passing of the HRA and its coming into force, there was a vigorous debate among UK legal scholars between the ‘verticalists’ and the ‘horizontalists’. The verticalists saw the HRA as having top-down effect only, between the state and its emanations on the one hand, and citizens on the other. The horizontalists saw it as affecting legal relations between citizens and non-public bodies also. The statutory duty to construe legislation compatibly with ECHR rights certainly extends that far, because it is quite general. In addition, the horizontalists argued that because under the (unlike the Charter of Human Rights and Responsibilities Act 2006 (Vic)) the term ‘public authority’ is defined as including the court,[40] the court is under a further statutory duty to mould and extend the common law, if necessary, to ensure that the court’s own decisions are compatible with ECHR rights.
This view (although supported by some eminent academics, including the late Sir William Wade)[41] was generally regarded with scepticism, and does not seem to have been put forward in argument in any of the early cases — but it was deployed, and was accepted in principle, by the Court of Appeal in the case of A v B plc.[42] In that case, the anonymised plaintiff, a celebrity footballer and a married man — the first of many such footballers to tread that path — sought an injunction to restrain publication of a news story about his sexual indiscretions. Lord Woolf CJ stated for the court:
The court’s approach to the issues which the applications raise has been modified because, under section 6 of the 1998 Act, the court, as a public authority, is required not to act ‘in a way which is incompatible with a Convention right’. The court is able to achieve this by absorbing the rights which articles 8 [right to private and family life] and 10 [freedom of expression] protect into the long-established action for breach of confidence. This involves giving a new strength and breadth to the action so that it accommodates the requirements of those articles.[43]
So the new right is founded on principle. It is a development from the long-established action for breach of confidence, which had since the 19th century (at latest) been available for the protection of trade secrets and (much more rarely) confidential matters of a personal nature.[44] An important intermediate step in its development was the decision of the House of Lords in the Spycatcher case, Attorney-General (UK) v Guardian Newspapers Ltd [No 2].[45] As many people will remember, that case was concerned with the memoirs of a former British counter-espionage officer (then retired and living in Australia) whose book, Spycatcher, was eventually published in 1987. That was after fiercely-fought litigation in the Supreme Court of New South Wales, in which the British Cabinet Secretary was cross-examined by Mr Malcolm Turnbull.[46] The case ended in the High Court of Australia,[47] but for present purposes the point to note is that in later proceedings in England the House of Lords restated the law of confidence in very general terms, not necessarily dependent on a pre-existing contractual or fiduciary relationship. However, the Lords refused any further injunction because the relevant information was already irretrievably in the public domain.
In A v B plc,[48] the English Court of Appeal recognised the principle of privacy but discharged the judge’s injunction on the ground that there was a sufficient public interest in the footballer’s adultery being disclosed. The Court took the opportunity of laying down guidelines as to how the Court should strike the balance. The guidelines were, it must be said, rather prescriptive and detailed for that early stage in the development of the law. They numbered fifteen in all, recalling Clemenceau’s comment at the Versailles Conference on Woodrow Wilson’s fourteen principles: ‘Le bon dieu soi-même n’avait que dix.’
The guidelines have not all been followed. In particular, later authorities do not attach much significance to the claimant being a ‘role model’ for the young.[49] As the law and practice have developed since the decision of the House of Lords in the case of the celebrity model Naomi Campbell,[50] more significance has been attached to whether a celebrity claimant is in truth more concerned with preserving his commercial sponsorship contracts than with protecting his family;[51] or has made unfounded suggestions of black-mail against someone with whom he has had a liaison;[52] or if the celebrity has previously publicly denied the aberrant conduct which the press has disclosed.[53]
The development of this branch of the law in England has undoubtedly been accelerated by the egregious conduct of the British press, and the readiness of some parts of the legal profession to encourage highly-paid footballers, TV personalities and other celebrities to seek prior restraint in the form of an ex parte injunction, which sometimes prohibits publication even of the fact of the injunction being granted. These so-called super-injunctions — secret justice, you might say, available only to the super-rich — have raised serious issues which were addressed last year by the Lord Chief Justice and the Master of the Rolls.[54] Some high-profile occasions on which ex parte injunctions have been discharged for material non-disclosure, together with the truly remarkable public inquiry now being conducted by Lord Justice Leveson, seem to have calmed the frenzy.
The leading Australian authorities in this area are the decisions of the High Court in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (‘Lenah Game Meats’)[55] (the case about filming in a possum processing factory) and Australian Broadcasting Corporation v O’Neill (‘O’Neill’)[56] (the case of allegations of murder against a man already convicted of multiple murders). These cases are well known to many but it is beyond the scope of this paper to discuss them in detail. However, it is worth noting that in Lenah Game Meats, Gleeson CJ suggested as a test of personal confidentiality whether ‘disclosure ... would be highly offensive to a reasonable person of ordinary sensibilities’;[57] which is probably a rather more stringent test than the English test of ‘a reasonable expectation of privacy’.[58] O’Neill is of particular interest for the scholarly but trenchant exposition by Heydon J of the rule in Bonnard v Perryman.[59] That longstanding rule in the law of defamation (no prior restraint where the defendant intends to plead justification) may need to be revisited in England in relation to the threatened publication of lurid personal allegations which may be actionable whether they are false or true. Both cases show the High Court of Australia’s interest in the special character of proceedings in which an injunction is, for practical purposes, the only relief sought.
IV CAUSATION IN THE TORT OF NEGLIGENCE
Next I want to discuss causation in the tort of negligence, and in particular the debate about equating exposure to risk with actionable loss. This is a very complex subject and I do not intend to go far into the technicalities of statistics and epidemiological evidence. For present purposes, I want to focus on the courts’ general approach to developing the common law in this area. As a preliminary point it may be noted that in most common law jurisdictions, the tort of negligence has in general received relatively little statutory codification or development, although the Parliament of New South Wales has, following the Ipp Report,[60] undertaken the heroic task of formulating principles of causation in statutory form.[61]
Both the House of Lords and the High Court of Australia have been invited, but have declined, to make a radical departure in the field of clinical negligence. The problem is that of late diagnosis of illness, and its causal effect. In the English case, Gregg v Scott,[62] there was, as a result of a general practitioner’s error, a delay of nine months in the diagnosis of cancer of a lymph gland in a 43-year-old man. In the Australian case, Tabet v Gett,[63] there was a delay of only 24 hours (but potentially a crucial 24 hours) in a six-year-old girl being examined by CT scan and EEG. In each case, the finding on the expert evidence was that there was less than an even chance that early diagnosis would have led to the patient’s recovery. In both decisions, the court declined to accede to an argument that the ‘loss of a chance’ approach should be adopted in the context of clinical negligence. ‘Loss of a chance’ is a familiar approach in claims for pure economic loss, such as a claim against a lawyer for carelessly permitting his or her client’s cause of action to become statute-barred.[64] But it would have been a momentous step to bring it into the field of personal injuries.
In Gregg v Scott, decided in 2005, the House of Lords was split 3:2. Lord Nicholls (who with Lord Hope was in the minority) saw it as a case of an obvious injustice which the Court should correct, and not leave to Parliament:
More fundamentally, if a claim is well-founded in law as a matter of principle, as I believe claims of this nature are, the duty of the courts is to recognise
and give effect to the claim. If the Government considers that some or all
of the adverse consequences of medical negligence should be borne by
patients themselves, no doubt it will consider introducing appropriate legislation in Parliament.[65]
But the majority viewed the proposed change as going beyond the judicial function. Lord Hoffmann quoted the words of Lord Nicholls himself in Fairchild:
To be acceptable the law must be coherent. It must be principled. The basis on which one case, or one type of case, is distinguished from another should be transparent and capable of identification. When a decision departs from principles normally applied, the basis for doing so must be rational and justifiable if the decision is to avoid the reproach that hard cases make bad law.[66]
Lord Hoffmann added:
I respectfully agree. And in my opinion, the various control mechanisms proposed to confine liability for loss of a chance within artificial limits do not pass this test. But a wholesale adoption of possible rather than probable causation as the criterion of liability would be so radical a change in our law as to amount to a legislative act. It would have enormous consequences for insurance companies and the National Health Service. In company with my noble and learned friends, Lord Phillips of Worth Matravers and Baroness Hale of Richmond, I think that any such change should be left to Parliament.[67]
In Tabet v Gett,[68] decided five years later, the High Court of Australia was unanimous. Almost the whole of the Court saw the proposed change as a radical step which would alter the traditional balance between plaintiff and defendant in clinical negligence cases.[69]
In Fairchild, by contrast, the House of Lords did develop a new principle of causation to deal with the particular problem posed by mesothelioma. It is a form of cancer that affects mesothelial cells lining the internal chest wall. It is invariably fatal. In the present state of medical science, it is generally thought to be caused only by the inhalation of asbestos fibres, and to be an indivisible disease in that the inhalation of a single fibre is capable of causing the cancer. I put this rather tentatively because medical science is capable of advancing, and in the recent case of Amaca Pty Ltd v Booth (‘Amaca’),[70] which went to the High Court of Australia, the trial judge accepted evidence, upheld in the High Court, that mesothelioma is divisible, at least in the sense that every exposure to asbestos made a ‘material contribution’[71] to the mesothelioma contracted by the plaintiff’s deceased husband. Nevertheless, the UK cases have proceeded on the basis of expert evidence that the disease is indivisible.
Other features of the disease are that it has a very long period of latency (the minimum period is sometimes put at 10 years), and it cannot be detected until it has reached an advanced stage. The consequence is that a person who, in the course of his or her working life is exposed to asbestos in several different employments, may eventually develop mesothelioma and (on the scientific view prevalent in the UK) there may be no way of identifying the period of employment during which the fatal inhalation of asbestos occurred. In Fairchild and Amaca, all the employers exposed the unfortunate workman to the risk of a fatal disease, and one at least must have been legally responsible for it, but in many cases it is impossible, on a traditional approach to legal causation, to prove which is responsible. In these circumstances, the House of Lords decided in Fairchild to adopt a new rule, narrowly circumscribed, to avoid injustice to claimants. That injustice was vividly described by Lord Bingham:
On the other hand, there is a strong policy argument in favour of compensating those who have suffered grave harm, at the expense of their employers who owed them a duty to protect them against that very harm and failed to do so, when the harm can only have been caused by breach of that duty and when science does not permit the victim accurately to attribute, as between several employers, the precise responsibility for the harm he has suffered. I am of opinion that such injustice as may be involved in imposing liability on a duty-breaking employer in these circumstances is heavily outweighed by the injustice of denying redress to a victim.[72]
Professor Jane Stapleton, who has a worldwide reputation in this area of the law, has commented that all but one of the Law Lords were concerned to avoid using legal fictions when presenting the new rule:
They explicitly refused to present this new rule in terms of the legal fiction that ‘on the evidence’ factual causation was sufficiently established. An awareness of these Fairchild judgments should galvanize American tort lawyers to appreciate that, although it has gone virtually unremarked, most US asbestos cases have so far proceeded on the basis of legal fictions.[73]
All the Law Lords, but perhaps Lord Rodger in particular, were conscious of the difficulty of setting the limits of a judge-made rule. Lord Rodger observed:
Identifying, at an abstract level, the defining characteristics of the cases where it is, none the less, proper to apply the principle is far from easy. The common law naturally and traditionally shies away from such generalisations especially in a developing area of the law.[74]
He went on to suggest six conditions as necessary, though they might not always be sufficient, to establish liability under the new rule.[75]
There was one point, potentially of crucial importance, that the Law Lords deliberately refrained from deciding. Although there were two other separate appeals heard and reported together with Fairchild, in none of them was the Court asked to determine whether liability, if established, was joint and several (and if several, how damages were to be apportioned between the defendants). That was, it seems, because all the risks were covered by solvent insurers, who agreed on apportionment of the damages.[76] Lord Hoffmann noted that this point was not before the House and should be left for consideration when it arose.[77] But it was in a way crucial to the nature of the change in the common law that the House was making.
This became apparent when the point did arise three years later in Barker v Corus UK Ltd,[78] another group of cases in which some of the employers — and, more importantly, their insurers — were insolvent, so that informal apportionment between all the employers was not feasible. The House of Lords decided by 4:1, with Lord Rodger dissenting, that there was not joint liability, but several liability for an apportioned part of the damages. Much of the argument turned on the nature of mesothelioma as indivisible damage. The heart of the majority view is in Lord Hoffmann’s opinion.[79] He said that the lower courts’ adoption of joint liability:
would be unanswerable if the House of Lords in Fairchild [2003] 1 AC 2 had proceeded upon the fiction that a defendant who had created a material risk of mesothelioma was deemed to have caused or materially contributed to the contraction of the disease. The disease is undoubtedly an indivisible injury ... But only Lord Hutton and Lord Rodger adopted this approach. The other members of the House made it clear that the creation of a material risk of mesothelioma was sufficient for liability.[80]
He referred to the majority speeches and drew this conclusion:
Consistency of approach would suggest that if the basis of liability is the wrongful creation of a risk or chance of causing the disease, the damage which the defendant should be regarded as having caused is the creation of such a risk or chance. If that is the right way to characterise the damage, then it does not matter that the disease as such would be indivisible damage. Chances are infinitely divisible and different people can be separately responsible to a greater or lesser degree for the chances of an event happening, in the way that a person who buys a whole book of tickets in a raffle has a separate and larger chance of winning the prize than a person who has bought a single ticket.[81]
Lord Rodger vigorously dissented, asking why the majority was ‘spontaneously embarking upon this adventure of redefining the nature of the damage suffered by the victims?’[82] He referred to the rule that a tortfeasor who is jointly liable may in practice have to bear more than his fair share of the damages, and continued:
That is a form of rough justice which the law has not hitherto sought to smooth, preferring instead, as a matter of policy, to place the risk of the insolvency of a wrongdoer or his insurer on the other wrongdoers and their insurers. Now the House is deciding that, in this particular enclave of the law, the risk of the insolvency of a wrongdoer or his insurer is to bypass the other wrongdoers and their insurers and to be shouldered entirely by the innocent claimant. As a result, claimants will often end up with only a small proportion of the damages which would normally be payable for their loss. The desirability of the courts, rather than Parliament, throwing this lifeline to wrongdoers and their insurers at the expense of claimants is not obvious to me.[83]
Parliament agreed with Lord Rodger, and reversed this decision very promptly (and it has to be said, with very little consultation). There was a suitable Bill before Parliament, and within weeks of the decision an amendment to the Bill was introduced. It became s 3 of the Compensation Act 2006 (UK) c 29, which imposes on each tortfeasor joint and several liability for the whole of the damage caused by mesothelioma. The result of this combination of common law development and statutory extension can be seen in Sienkiewicz v Greif (UK) Ltd,[84] on which Professor Stapleton has made some trenchant comments.[85]
V WHEN SHOULD THE COURT DEVELOP THE COMMON LAW?
If we stand back it is not easy to discern, from the pronouncements of the House of Lords and the Supreme Court in the different areas that I have looked at, any clear consensus as to what is, and what is not, off-limits for the development of the common law by a court of last resort. A lot seems to depend on judicial intuition. But the cases suggest that it is common law rules which might be described as ‘lawyer’s law’ — such as witness immunity or mistake of law — that the judges are most ready to develop. Lord Goff had passionately-held views about mistake of law, but it is not a topic that is much talked about on the Clapham bus or the Glen Iris tram. Conversely, issues which potentially have large social and economic consequences, such as causation in clinical negligence and industrial diseases, are generally best left to Parliament.
Sometimes, however, governments are reluctant to bring forward measures responding to a perceived social problem. There may be various reasons for this, including congestion of the legislative programme, lack of consensus as to the correct solution, or simply a feeling that controversial legislation might be a vote-loser rather than a vote-winner. A striking example in England is the real social problem of unmarried cohabitants who, being young and in love, buy a house or flat with no clear agreement or understanding, either written or oral, as to the beneficial ownership of the property. If in due course the relationship ends in tears, the question of beneficial ownership of their most valuable asset may have to be resolved by the court in expensive litigation which neither side can afford.
Many common law countries, including Australia,[86] have enacted laws giving the courts a statutory discretion to resolve these issues in cases where the cohabitation has achieved a degree of stability (such as after two years’ duration, or shorter if the couple have a child). In England, the Law Commission has considered this issue at length but has failed to find a solution that Parliament will accept.[87] Parliament has therefore done nothing. In these circumstances, the court has had no option but to try to develop trust law concepts to provide a solution. The problems of trying to balance fairness of outcome with predictability of outcome are formidable. The latest case is the decision of the Supreme Court in Jones.[88] Our efforts have met with less than universal approbation (to say the least) from legal scholars,[89] but it is not open to judges, faced with a difficult question, to say ‘pass’.
The same can be said, with even more conviction, as to issues which — often as a result of advances in medicine, human biology and biochemistry — raise difficult and controversial ethical questions: human fertilisation and embryology, surrogacy, genetic modification, assisted suicide, and indeed the very definition of death. In the United Kingdom, Parliament has passed fairly comprehensive legislation in the field of human fertilisation and embryology, although the swift advance of science and technology in this area has already raised some difficult questions as to the meaning and application of the statutory provisions.[90]
In the field of human mortality, by contrast, Parliament has shown a marked reluctance either to clarify or to change the law. The Mental Capacity Act 2005 (UK) c 9, s 4 has given some statutory guidance as to determining what is in the best interests of an incapable individual. But apart from that, there is no statutory guidance as to the circumstances in which medical professionals can take action (such as switching off life support equipment) that will bring about the death of a patient for whom (as many would think) continued life appears to have no meaning, purpose or value. It is now 23 years since the Hillsborough football stadium disaster in which many died and many more suffered serious injuries. One of those most seriously injured was Tony Bland, then aged 17. He was crushed and suffered hypoxic brain damage which reduced him to a persistent vegetative state. His brain stem remained alive but the cortex of his brain was completely inactive. He could breathe without mechanical support, so that there was no question of switching off life support equipment. If his death was to be brought about it had to be by the withdrawal of nutrition and hydration. The final extinction of his life would be slow, and distressing to those who were caring for him; Tony Bland himself was incapable of feeling anything.
That was the chilling issue that the House of Lords had to face almost 20 years ago.[91] It has also arisen in other common law jurisdictions.[92] I do not propose to discuss the arguments, or the obvious intellectual embarrassment which the House of Lords found in discussing the distinction, elusive in this context, between acts and omissions. But I draw attention to Lord Mustill’s observations as to the role of the court. After referring to the creation of a new common law exception to the offence of murder, Lord Mustill said:
This approach would have the great attraction of recognising that the law has been left behind by the rapid advances of medical technology. By starting with a clean slate the law would be freed from the piecemeal expedients to which courts throughout the common law world have been driven when trying to fill the gap between old law and new medicine. It has however been rightly acknowledged by counsel that this is a step which the courts could not properly take. Any necessary changes would have to take account of the whole of this area of law and morals, including of course all the issues commonly grouped under the heading of euthanasia. The formulation of the necessary broad social and moral policy is an enterprise which the courts have neither the means nor in my opinion the right to perform. This can only be achieved by democratic process through the medium of Parliament.[93]
That was nearly 20 years ago, and as I have already noted, there has since then been almost no legislative activity in this sensitive area. So as Lord Browne-Wilkinson said in the same case:
The judges’ function in this area of the law should be to apply the principles which society, through the democratic process, adopts, not to impose their standards on society. If Parliament fails to act, then judge-made law will of necessity through a gradual and uncertain process provide a legal answer to each new question as it arises. But in my judgment that is not the best way to proceed.[94]
More recently, assisted suicide has been considered by the House of Lords in the cases of Mrs Pretty[95] and Mrs Purdy.[96] In each case, the House was unanimous that any change in the law was a matter for Parliament. All that was achieved, in the latter case, was a direction to the DPP to publish a clarification of his policy as to the prosecution of a person who assisted in the suicide of a mortally-ill spouse or relative.
VI CONCLUSION
In conclusion, I repeat that judges cannot simply say ‘pass’. In the absence of legislative action they must resolve justiciable issues brought before them, however much they may feel that parliamentary intervention would have been the better and the more democratic course. As Sir Thomas Bingham MR said in another sensitive case about childcare, it is ultimately the duty of the court to give effect to its own judgment: ‘That is what it is there for. ... [O]nce the jurisdiction of the court is invoked its clear duty is to reach and express the best judgment it can.’[97]
So sometimes, when Parliament refrains from addressing a new problem, the court has no option but to give the best judgment that it can.
[*] BA, LLB (Cantab); Baron Walker of Gestingthorpe QC PC; Non-Permanent Justice of the Hong Kong Court of Final Appeal; Former Justice of the Supreme Court of the United Kingdom. This piece was originally presented by the author as ‘Developing the Common Law: How Far is Too Far?’ (Speech delivered at the Banco Court, Supreme Court of Victoria, ‘Victoria Law Foundation Oration’, Melbourne, 2 September 2012).
[1] In practice, it would usually be the collegiate decision of a final appeal court.
[2] [1998] UKHL 38; [1999] 2 AC 349, 378.
[3][2002] UKHL 22; [2003] 1 AC 32.
[4] See, eg, R P Meagher, J D Heydon and M J Leeming, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies (LexisNexis Butterworths, 4th ed, 2002) xi.
[5] [1996] UKPC 56; [1996] AC 624.
[6] Ibid 640 (Lord Lloyd for Lords Keith, Browne-Wilkinson, Mustill, Lloyd and Sir Michael Hardie Boys).
[7] Ibid 641–2, citing Bryan v Maloney (1995) 182 CLR 609. See also Woolcock Street Invest-ments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515, 537–42 [48]–[57] (McHugh J), 580–2
[184]–[190] (Kirby J).
[8] Invercargill City Council v Hamlin [1996] UKPC 56; [1996] AC 624, 641 (Lord Lloyd for Lords Keith, Browne-Wilkinson, Mustill, Lloyd and Sir Michael Hardie Boys), citing Kamloops v Nielsen [1984] 2 SCR 2.
[9] [1876] UKLawRpCP 61; (1876) 1 CPD 540.
[10] Ibid 543 (Lord Coleridge CJ).
[11] See, eg, Palmer v Durnford Ford [1992] 1 QB 483 (whether a tractor engine had been competently repaired); Landall v Faulkner & Alsop [1994] 5 Med LR 268 (whether an operation for spinal fusion would give pain relief); Stanton v Callaghan [2000] 1 QB 75 (whether imperfect underpinning of a house could be remedied by infilling with polystyrene).
[12] [2011] UKSC 13; [2011] 2 AC 398.
[13] Saif Ali v Sydney Mitchell & Co [1980] AC 198, 214.
[14] [2002] 1 AC 615, 698.
[15] Jones [2011] UKSC 13; [2011] 2 AC 398, 419–20 [52]–[54] (Lord Phillips PSC); 426–7 [81]–[86] (Lord Collins JSC); 427–9 [87]–[94] (Lord Kerr JSC); 433–5 [117]–[124] (Lord Dyson JSC). Lord Brown JSC did not refer to insurance in his judgment: at 422–3 [63]–[69].
[16] [2006] EWCA Civ 1390; [2007] QB 462.
[17] [2005] HCA 12; (2005) 223 CLR 1.
[18] Kirby J expressed no opinion as to work in court and dissented as to work done out of court.
[19] Ibid 17 [34] (Gleeson CJ, Gummow, Hayne and Heydon JJ). See the full discussion: at 17–20 [34]–[42].
[20] [2011] UKSC 13; [2011] 2 AC 398, 422 [60] (Lord Phillips PSC).
[21] [2008] HCA 34; (2008) 238 CLR 218, 223 [15] (Gummow ACJ, Hayne, Heydon, Crennan and Kiefel JJ), quoting D’Orta-Ekenaike [2005] HCA 12; (2005) 223 CLR 1, 17 [34] (Gleeson CJ, Gummow, Hayne and Heydon JJ).
[22] R v McIlkenny (1991) 93 Cr App R 287.
[23] R v Maguire [1992] 1 QB 936.
[24] [2005] HCA 12; (2005) 223 CLR 1, 102 [324].
[25] Ibid 108 [343], quoting Arthur J S Hall & Co v Simons [2002] 1 AC 615, 704–5 (Lord Hoffmann).
[26] [2007] NSWCA 370; (2007) 70 NSWLR 268.
[27] Commonwealth v Griffiths [2007] NSWCA 370; (2007) 70 NSWLR 268, 280–2 [55]–[61], citing Evans v London Hospital Medical College [1981] 1 WLR 184.
[28] See, eg, X (Minors) v Bedfordshire County Council [1995] UKHL 9; [1995] 2 AC 633, 755 (Lord Browne-Wilkinson).
[29] J D Heydon, Cross on Evidence (LexisNexis Butterworths, 8th ed, 2010) 851 [25070].
[30] Lam Chi-Ming v The Queen [1991] 2 AC 212, 222 (Lord Griffiths for Lords Bridge, Templeman, Griffiths, Goff and Lowry).
[31] R v Director of Serious Fraud Office; Ex parte Smith [1993] AC 1, 40.
[32] Ibid.
[33] Phillips v News Group Newspapers Ltd [2012] EWCA Crim 650; [2013] 1 AC 1, 66–7 [11] (Lord Walker JSC).
[34] See, eg, A T & T Istel Ltd v Tully [1993] AC 45.
[35] Coogan v News Group Newspapers Ltd [2013] 1 AC 37, 43 [18] reported in Phillips v News Group Newspapers Ltd [2012] EWCA Crim 650; [2013] 1 AC 1.
[36] [1983] HCA 10; (1983) 152 CLR 281, 309 (Mason, Wilson and Dawson JJ).
[37] [2003] UKHL 53; [2004] 2 AC 406.
[38] Ibid 423 [31], [33]–[34].
[39] Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953).
[40] HRA s 6(3)(a).
[41] H W R Wade, ‘Horizons of Horizontality’ (2000) 116 Law Quarterly Review 217, cited in Wainwright v Home Office [2003] UKHL 53; [2004] 2 AC 406, 412 (Ian Burnett QC) (during argument).
[42] [2002] EWCA Civ 337; [2003] QB 195.
[43] Ibid 202 [4] (Lord Woolf CJ for Lord Woolf CJ, Laws and Dyson LJJ).
[44] Duchess of Argyll v Duke of Argyll [1967] 1 Ch 302.
[45] [1990] 1 AC 109.
[46] A-G (UK) v Heinemann Publishers Australia Pty Ltd (1987) 10 NSWLR 86.
[47] A-G (UK) v Heinemann Publishers Australia Pty Ltd [1988] HCA 25; (1988) 165 CLR 30.
[48] [2002] EWCA Civ 337; [2003] QB 195.
[49] There are some trenchant comments on this in an essay by Sir Stephen Sedley: Stephen Sedley, Sparks and Ashes: Essays on Law and Justice (Cambridge University Press, 2011) 314.
[50] Campbell v MGN Ltd [2004] UKHL 22; [2004] 2 AC 457.
[51] Terry v Persons Unknown [2010] EWHC 119; [2010] EMLR 16.
[52] Browne v Associated Newspapers Ltd [2007] EWCA Civ 295; [2008] QB 103.
[53] Campbell v MGN Ltd [2004] UKHL 22; [2004] 2 AC 457.
[54] Judicial Communications Office, ‘Press Conference held by the Lord Chief Justice of England and Wales and the Master of the Rolls’ (Media Release Transcript, 20 May 2011).
[56] [2006] HCA 46; (2006) 227 CLR 57.
[57] (2001) 208 CLR 199, 226 [42].
[58] Murray v Express Newspapers plc [2009] Ch 481.
[59] O’Neill [2006] HCA 46; (2006) 227 CLR 57, 115–16 [173]–[175], citing Bonnard v Perryman [1891] UKLawRpCh 69; [1891] 2 Ch 269.
[60] Panel of Eminent Persons (‘Ipp Committee’), Review of the Law of Negligence: Final Report (2002).
[61] Civil Liability Act 2002 (NSW) s 5D, considered in Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182, 190–195 [17]–[30] (French CJ, Gummow, Crennan and Bell JJ).
[62] [2005] UKHL 2; [2005] 2 AC 176.
[63] [2010] HCA 12; (2010) 240 CLR 537.
[64] See, eg, Kitchen v Royal Air Force Association [1958] 1 WLR 563.
[65] Gregg v Scott [2005] UKHL 2; [2005] 2 AC 176, 191–2 [54].
[66] Ibid 198 [89], quoting Fairchild [2002] UKHL 22; [2003] 1 AC 32, 68 [36].
[67] Gregg v Scott [2005] UKHL 2; [2005] 2 AC 176, 198–9 [90].
[68] [2010] HCA 12; (2010) 240 CLR 537.
[69] Ibid 562–3 [59] (Gummow ACJ), 564 [68] (Hayne and Bell JJ), 575 [102] (Crennan J), 588–9 [150]–[151] (Kiefel J). Heydon J confined his judgment to a close analysis of the evidence.
[70] [2011] HCA 53; (2011) 246 CLR 36.
[71] See also March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 514 (Mason CJ).
[72] Fairchild [2002] UKHL 22; [2003] 1 AC 32, 67 [33]. See also at 74 [60]–[62] (Lord Hoffmann), 112–13 [155] (Lord Rodger).
[73] Jane Stapleton, ‘Benefits of Comparative Tort Reasoning: Lost in Translation’ in Mads Andenas and Duncan Fairgrieve (eds), Tom Bingham and the Transformation of the Law: A Liber Amicorum (Oxford University Press, 2009) 773, 781 n 33, citing Jane Stapleton, ‘Two Causal Fictions at the Heart of US Asbestos Doctrine’ (2006) 122 Law Quarterly Review 189.
[74] Fairchild [2002] UKHL 22; [2003] 1 AC 32, 118 [169].
[75] Ibid 118–19 [170].
[76] This is the explanation suggested by Lord Phillips in Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10; [2011] 2 AC 229, 249 [35].
[77] Fairchild [2002] UKHL 22; [2003] 1 AC 32, 77–8 [73]–[74].
[78] [2006] UKHL 20; [2006] 2 AC 572.
[79] Barker v Corus UK Ltd [2006] UKHL 20; [2006] 2 AC 572, 588–90 [31]–[35].
[80] Ibid 588–9 [31].
[81] Ibid 589–90 [35].
[82] Ibid 606 [86].
[83] Ibid 607–8 [90].
[84] [2011] UKSC 10; [2011] 2 AC 229.
[85] Jane Stapleton, ‘Factual Causation, Mesothelioma and Statistical Validity’ (2012) 128 Law Quarterly Review 221.
[86] Family Law Act 1975 (Cth) pt VIIIAB, ss 90MA, 90TA.
[87] Law Commission, Cohabitation: The Financial Consequences of Relationship Breakdown, No 307 (2007); Law Commission, Statement to Government, Statement on the Government’s Response to the Report ‘Cohabitation: The Financial Consequences of Relationship Breakdown’, 6 September 2011.
[88] [2011] UKSC 53; [2012] 1 AC 776.
[89] See, eg, Simon Gardner and Katharine Davidson, ‘The Supreme Court on Family Homes’ (2012) 128 Law Quarterly Review 178; Adrian Briggs, ‘Co-Ownership and an Equitable Non Sequitur’ (2012) 128 Law Quarterly Review 183; John Mee, ‘Ambulation, Severance, and the Common Intention Constructive Trust’ (2012) 128 Law Quarterly Review 500.
[90] R (Quintavalle) v Secretary of State for Health [2003] UKHL 13; [2003] 2 AC 687, where the Human Fertilisation and Embryology Act 1990 (UK) c 37 was judicially considered. See also Human Fertilisation and Embryology Act 2008 (UK) c 22.
[91] Airedale NHS Trust v Bland [1992] UKHL 5; [1993] AC 789.
[92] See, eg, Cruzan v Director, Missouri Department of Health, [1990] USSC 122; 497 US 261 (1990); B (N) v Hôtel-Dieu de Québec (1992) 86 DLR (4th) 385 (Quebec Superior Court); Auckland Area Health Board v A-G (NZ) (1993) 1 NZLR 235.
[93] Airedale NHS Trust v Bland [1992] UKHL 5; [1993] AC 789, 890.
[94] Ibid 880.
[95] R (Pretty) v DPP (UK) [2002] 1 AC 800. It was later considered by the European Court of Human Rights in Pretty v United Kingdom [2002] III Eur Court HR 155.
[96] R (Purdy) v DPP (UK) [2009] UKHL 45; [2010] 1 AC 345.
[97] Re Z (A Minor) (Identification: Restrictions on Publication) [1997] Fam 1, 33.