Date: Thu, 8 Dec 2005 16:00:07

From: Jason Neyers

Subject: Kirby J. in the High Court of Australia

Colleagues:

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

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

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

Two points about this passage:

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

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

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

Cheers,

----- Original Message -----
From: Neil Foster
Date: Thursday, December 8, 2005 0:33 am
Subject: ODG: High Court of Australia- no breach in "garage sale" case

The High Court has now handed down its decision in Neindorf v Junkovic [2005] HCA 75 (8 December 2005). The case, on appeal from the Sup Ct of SA, involved a "garage sale" (I'm not sure what they're called elsewhere - domestic junk offered on tables for neighbours and others to come and purchase) in a suburban house occupied by Ms Neindorf and an injury suffered by Ms Junkovic who tripped on an uneven piece of concrete having come in to make a purchase. I won't give a lengthy analysis- the bottom line is that by a 4-1 majority (Gleeson CJ, Hayne J, Callinan & Heydon JJ; Kirby J in dissent) the HC found that there had been no breach of the occupier's duty in not warning entrants of the unevenness in the driveway. Similarities in terms of the effect of the "obviousness" of the risk to the recent decision in Vairy. Interesting points in Kirby J's judgement include a wish (at para [76]) that he had never said what he did about "obviousness" of risk in Romeo, as ever since he says it has been taken out of context and misused; and an impassioned plea at [86] that the law of negligence in Australia is moving too far away from Scriptural principles of non-selfishness embodied in Lord Atkin's judgement in Donoghue v Stevenson. This last is a comment I must say I personally find very powerful.

--
Jason Neyers
January Term Director
Assistant Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435

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