You had better watch out for yourself. And watch what you eat.
The law of negligence continues to turn in Australia. It is turning away from insisting people and corporations look after others to a regime of greater personal responsibility to look after yourself.
Mind you, no-one is out there screaming about judge-made law or about unelected judges usurping the rule of law and the elected Parliament. But in the past four or five years the judges have quietly gone about the business of changing the law.
This week the High Court held that a licensed club was not liable to woman who got massively drunk and got hit by a car while wandering in the middle of the road on her way home.
The reason for the silence about judges making law is because most people would think the ruling made good sense. You only get screams about judges making law from people who disagree with the result, as distinct from the way the result was achieved.
But unelected judges do make law, and they make it in a social context. Some judges deny this. They say they merely apply the law. They say they never respond to cries in the media and elsewhere about events in the world. But how else do you explain the changing direction of the Titanic of the common law in recent times?
With hardly a murmur from the elected Parliament, the courts have set about denying a range of claims that in earlier days would have been embraced by the hitherto ever-widening ambit of the law of negligence. People who trip over defective footpaths; people who dive unwarned into dangerous waters; people who fall off bridges and balconies and people who crash on badly made roads have all been denied.
True, Parliament has limited damages and in NSW prevented lawyers from advertising for plaintiffs, but it has not changed the underlying principles of the law of negligence. The judges have done that all on their own.
Don’t get me wrong. I am not saying this is a Bad Thing. Perhaps it is about time people took a bit more personal responsibility. Perhaps it is about time people did not keep blaming someone else for their own folly. If you get drunk and wander in the middle of the road or dive into dangerous waters why should someone else pay?
Perhaps it is a Good Thing that the judges in charge of the Titanic that is the common law are slowly steering it away from the iceberg. And it was heading for the iceberg. In more optimistic days, the bounds of negligence law could be widened. It was easy. Insurance could pick up the cost and no-one would know the difference. But now premiums have gone so high that a great range of wholesome human activity has ceased. Councils tear up playgrounds for fear of liability. Horse-riding clubs close. And so on. The law was heading for the iceberg.
True, insurance companies and doctors have opportunistically over-egged the pudding, but ever-widening public liability was making it difficult to do business.
Gut instinct was telling people enough was enough. It was getting out of hand and impractical. Judges are alert to that and have started to change the law.
In this week’s case, the classic old law was applied by Justice Michael McHugh, but he was in the minority.
McHugh stated the legal precedents that an occupier of premises, like the club, had a legal duty to protect members and customers from injury arising out of the use of the premises.
“In principle, the duty to protect members and customers from injury as a result of consuming beverages must extend to protecting them from all injuries resulting from the ingestion of beverages,” he said. “It must extend to injury that is causally connected to ingesting beverages.” Supplying alcohol gave rise to a reasonable possibility that the customer would suffer injury that could have been prevented by reasonable care, he said.
“No doubt some minds may instinctively recoil at the idea that the club should be liable for injuries sustained by a drunken patron who is run down after leaving its premises. But once it is seen that the club had a legal duty to prevent her drinking herself into a state where she was liable to suffer injury, the case wears a different complexion. The club has a legal responsibility for the injury. Instinct must give way to the logic of the common law.”
The majority judges, on the other hand, looked at practicalities and consequences; not black-letter law and logic.
One of them, Chief Justice Murray Gleeson, said that allowing the drunk to win the case would “involve both an unacceptable burden upon ordinary social and commercial behaviour, and an unacceptable shifting of responsibility for individual choice.”
That is more a statement of ideology (albeit restrained) than legal precedent.
So let’s not kid ourselves here. Let’s not assume that judges only make law when the result is abhorrent to conservatives – like the Mabo case or the freedom-of-speech cases. They also make law when the result would be applauded by conservatives.
Plaintiff-lawyer associations argue that broadening negligence law makes society safer because corporations take greater care of others for fear of liability. There is a great deal of truth in that, but only up to a point. That point arises when people don’t bother taking much look out for themselves because they think someone else will pick up the tab. The drunk in the club has hit that point. And the judges have changed the law to take account of it. In doing so, they were doing their job. They were reacting to events in society in a careful and reasoned way. They were not usurping Parliament.
There will be consequences. The most obvious is that any claim against a junk food manufacturer for causing obesity or long-term ill health is doomed.
You will have to take responsibility yourself for what you eat.
Also a lot of injuries in public places will be put down to personal carelessness or bad luck rather than a corporation’s negligence.
But don’t expect those insurance premiums to tumble any time soon.