● natural disasters are not really natural;
● the human impact of natural disasters is magnified by environmental mismanagement;
● vulnerability to disasters is far higher in the Third World and is largely a matter of poverty;
● for the above reasons, disasters and the deaths they cause are increasing.
Yet at the same time that deaths by ‘natural’ disasters increase, the supposed
‘naturalness’ of those events keeps them – and their victims – out of bounds of a traditional tort syllabus focused on ‘fault’.
Given our reservations about a negligence law preoccupied with individual responsibility, in the next section we want to examine whether there is any potential for tort law being utilised to address the systemic disadvantage often suffered by minority cultures.
RACE, POLICY AND THE POTENTIAL
in having the action struck out in the NSW Supreme Court. Studdert J held that the Commonwealth could not be liable in tort for failure to perform func-tions at a ‘policy-making’ level as distinct from an ‘operational’ level.
Here, Studdert J was drawing on a distinction made by Mason J (as he then was) in Sutherland Shire Council v Heyman.41Mason J admitted that the distinction between policy and operational decisions was not easy to formulate, but held that a public authority is under no duty of care for decisions which are dictated
‘by financial, economic, social or political factors or constraints’.42
One of the justifications that Studdert J offers for courts’ refusal to second-guess such governmental ‘policy’ decisions is that ‘it is basic to our constitutional arrangements that such decisions should be made by officials who are ulti-mately answerable to the electorate rather than by judges who are not politically answerable at all’.43However, this ignores the fact that those groups who are most explicitly made the object of government policies are often those with the least ability to influence those policies; as aspects of disadvantage, the two are often linked, as shown in the history of Aborigines and Islanders. One of the earliest Acts of the newly formed Commonwealth was the Commonwealth Franchise Act 1902 which excluded Aboriginal peoples from voting. In 1949 the Commonwealth franchise was extended to those entitled to vote at State level and to those who had served in the defence forces, which still effectively excluded most of the Aboriginal populations of Western Australia and Queensland. It was not until 1962 that all Aborigines were enfranchised.44The
‘constitutional arrangement’ which lies at the foundation of the Crown’s immu-nity, conclude the authors of a recent study, ‘was empty and barren at its core and blatantly discriminatory in its parts’ with regard to basic citizenship rights.45
In popular consciousness, Aboriginal disenfranchisement was superseded by the referendum of 1967. As we have just noted, that referendum did not in fact grant citizenship or voting rights, both of which had already become avail-able to Aborigines, but instead allowed Aborigines to be counted in the national census and granted the Commonwealth concurrent powers with the states in legislation affecting Aborigines. Far from being an enfranchisement or the bestowing of citizenship, 1967 allowed the Commonwealth to intensify its power over Aborigines as explicit objects of policy. Tim Rowse cites the story told by Bill Lovelock, a New England Koori, that links the 1967 referendum with the dissolution of reserves and hence with the end of kinship and com-munity. Likewise, the film Exile and the Kingdom links ‘citizenship’ with
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41 (1985) 157 CLR 424.
42 Ibid, 469.
43 27 ALD 516, 523, citing Hogg, P,Liability of the Crown, 2nd edn, 1989, Sydney: Law Book Co.
44 See Chesterman, J and Galligan, B, Citizens Without Rights: Aborigines and Australian Citizenship, 1997, Melbourne: Cambridge University Press.
45 Ibid.
removal of the Injibandi from the land, ‘plunging them into a world of cash welfare benefits and alcohol abuse’.46Hobbes Danaiyarri has made a similar point: ‘Citizenship just for grog, and grog been fuck the lot of them’.47Such stories throw into doubt the existence of putative ‘shared narratives of nation-hood’ that are mobilised by Studdert J to keep alive the ‘policy’/’operational’
distinction.
Such stories are also part of a historical narrative that tries to account for the existence of Aboriginal alcoholism48and in doing so allocate ‘responsibility’ for that alcoholism. To us, the claim by Christian, Ryan and Lucas highlights the contours of an ongoing debate over conflicting allocations of responsibility: are they passive victims of colonisation deserving of compensation, or are they individual agents who have actively created their own problem?49The debate is partly a sterile one, as it fails to recognise how Aboriginal agency is itself formed by the processes of colonisation. What is interesting from the point of view of this case, however, is Studdert J’s approach to this debate. He says, in fact, that ‘[The claim] seems to me to confuse what is perceived as the moral duty of successive governments with the concept of a legal duty of care’ (at 523). That is, he seems to accept that it is not possible to talk about Aboriginal alcoholism without invoking some notion of governments’ ‘responsibility’, but then goes on to draw a distinction between modes of responsibility, ‘moral’ and ‘legal’.
It is this distinction which strikes us as a singularly unimaginative reading of the possibilities opened by the jurisprudence of Heyman. Mason and Brennan JJ there developed a theory of ‘reliance’ whereby a governmental authority may have a duty to take positive action if it has itself created or increased the risk of injury of that kind by some antecedent act.50Alternatively, an antecedent act on the part of the authority may lead to a situation of dependence or reliance on the authority by members of the public.51In the same case, Deane J developed the notion of ‘proximity’ as a prerequisite for finding a duty of care, but admit-ting that the finding of proximity in this type of case will reflect reliance by the plaintiff upon care being taken by the defendant to prevent injury loss or dam-age.52 In the context of the expanding liability of lawyers to their clients, Gaudron J recast the notion of reliance as one of ‘reasonable expectation’.53
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46 Rowse, T, ‘Diversity in Indigenous Citizenship’ in Hage, G and Johnson, L (eds), Republicanism, Citizenship, Community, 1993, pp 47, 48–49, Nepean: University of Western Sydney.
47 Cited in Bird Rose, D, ‘The Public, the Private and the Secret Across Cultural Difference’ in Finlayson, J and Jackson-Nakano, A (eds), Heritage and Native Title: Anthropological and Legal Perspectives(1996) Canberra: Australian Institute of Aboriginal and Torres Strait Islander Studies 113, 124.
48 See Langton, M, ‘Rum, Seduction and Death: “Aboriginality” and Alcohol’ (1993) 63 Oceania 195.
49 See Rowse, T, ‘Expert Testimony’ (1994) 14 Arena Magazine32, 34–35.
50 Sutherland Shire Council v Heyman (1985), 157 CLR 424, 485 per Brennan J.
51 Ibid, 461 perMason J.
52 Ibid, 508.
53 Hawkins v Clayton(1988) 164 CLR 539, 569.
Given the historical experience of colonialism, the doctrine of reasonable reliance offers a fruitful basis for the plaintiff’s claim:54
[T]he argument that the Commonwealth had assumed special responsibility for the welfare of Aboriginal people was crucial; if responsibility had been accepted by the Commonwealth as a matter of policy, then many of the alleged failures could be seen in the light of operational decisions, for exam-ple, the failure to warn Aboriginal people of the dangers of alcohol use and failure to provide services by way of regulation, education and control, as well as health services.
The administrative history of the Commonwealth’s engagement with indige-nous people is precisely about the ‘conflation’ of moral and legal duties, particularly in the era of ‘protectionism’, and it seems disingenuous of Studdert J to try and separate them for the purposes of excusing the Commonwealth. If anything, the trend in contemporary Australian tort law is in the opposite direction, with Deane J in Heyman suggesting that in recognising new cate-gories of duty of care courts should take account of what is fair and reasonable.55
In a subsequent case, Studdert J rejected a motion by Joy Williams, an Aboriginal woman who was placed in institutional care at birth by the Aborigines’ Welfare Board and who claimed she suffered a borderline person-ality disorder as a result of her childhood experiences. She sought an order for the extension of time under the Limitation Act 1969 (NSW). On appeal, Kirby P (as he then was) concluded:56
The law which has often been an instrument of injustice to Aboriginal Australians can also, in proper cases, be an instrument of justice in the vindi-cation of their legal rights. It is not just and reasonable in this case to close the doors of the court in Ms Williams’s face. She should have her chance to prove her case. She might succeed. She might fail. But her cause will have been heard in full. It will then have been determined as our system of law provides to all Australians – Aboriginal and non-Aboriginal – according to law, in open court and on its merits.
Priestley JA echoed this approach, indicating that the case of Joy Williams struck him as ‘pre-eminently to be of the kind where a broad approach should be taken to questions of arguability of legal propositions which may be novel but which require careful consideration in the light of changing social circumstances’.57
Despite Kirby P and Priestley JA’s rousing cheers for tort law, what kind of forum does it offer for the purposes of these cases? Rae Kaspiew argues that
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54 Kaspiew, R, ‘Does the Commonwealth Owe a Duty of Care to Aborigines to Protect them from Alcohol?’ (1994) 2 Torts Law Journal32, 34–35.
55 (1985) 157 CLR 424, 498.
56 Williams v Minister for Aboriginal Land Rights Act 1983 and another(1994) 35 NSWLR 497, 515.
57 Ibid, 516.
problems arise in Eland ‘as the result of attempting to fit a complex wrong with-in a narrow framework of an Anglo-Saxon legal system with-in which claims to redress injustice must first pass through a series of barriers...’.58For example, Eland raises the following questions: what are the relative advantages and dis-advantages of thinking of Aborigines as a special category? Does such thinking merely recognise the historical structures of colonialism or replicate these structures into the future?59
Ian Malkin has suggested that negligence law is increasingly being ‘utilised by diverse segments of the community who would otherwise have nowhere to turn to seek and obtain legal redress. At the very least, these marginalised and disenfranchised individuals are using this tort in attempts to make significant public statements’.60In such a context, actual damages for specific individuals may not be as important an outcome as the setting of higher standards of behaviour by public authorities and amended policies or other useful govern-ment intervention.61Such a role for tort law was envisaged by Dunford J in a NSW case brought by the Aboriginal Legal Service on behalf of prisoners in Bathurst Gaol and Long Bay Gaol seeking orders to ensure access to condoms within prison: he found there was no reason not to grant injunctions restrain-ing the commission of torts even where there was no proof of damage.62
In October 1996, the North Australian Aboriginal Legal Aid service lodged over 560 personal injury writs arising from the removal of Aboriginal children from their parents and their country under the Aboriginals Ordinance. The emphasis on tort law can make the aim of such actions appear to be solely mon-etary compensation, yet those involved see it as ‘more than just a compo case’.63 In particular, it involves a quest for recognition of the fundamental Aboriginality of the cultures of the ‘stolen generations’ as equivalent to rem-nant community cultures, especially when it comes to the right to land.64How courts variously evaluate ‘traditional’ versus urban Aboriginal cultures in the context of damages awards is further considered in part 6, below.
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58 Kaspiew, above n 54, 36.
59 We flagged a similar issue in our discussion of fiduciary duty and the Canadian case of Norberg v Wynribin Chapter 2, where contrasting judgments utilised tortious and equitable principles. For a defence of the tort approach in that case, see Peppin, above n 2.
Interestingly, Kirby P thought the fact that an equitable claim for breach of fiduciary duty by Joy Williams would not be barred by the Limitations Act 1969 (NSW) and could proceed to trial was relevant to the determination of what is just and reasonable to do in respect of the action in tort, given that the evidence in both actions would be substantially the same:
35 NSWLR 497, 510. On paternalism more generally, in personal injury law and the duty of statutory authorities, see Sandra Berns’s discussion of Nagle v Rottnest Island, ‘Judicial Paternalism and the High Court’ 18 Alternative Law Journal202.
60 Malkin, I, ‘Tort Law’s Role in Preventing Prisoners’ Exposure to HIV Infection While in Her Majesty’s Custody’ (1995) 20 Melbourne University Law Review423, 441.
61 Ibid, 475–76.
62 Ibid, 432–34.
63 Storey, M, ‘The Stolen Generations: More Than Just a Compo Case’ (1996) 86 Aboriginal Law Bulletin4.
64 Ibid, 4–5.
CURRICULUM SUGGESTION
Getting a Negligence Case to Court
A first year subject in tort law provides the opportunity for the incorpora-tion of ‘legal process’ materials. Issues of procedural reform to take account of cultural factors and increase access to justice have figured prominently in cross-cultural perspectives on the law.65 Further, a topic such as
‘Introduction to the Legal System’ provides ample scope for critical reflec-tion on cultural bias in Australian legal institureflec-tions, in particular the representation of ethnic diversity amongst judges and legal practitioners.66 Greta Bird’s, The Process of Law in Australia: Intercultural Perspectives, 2nd edn, 1993, Sydney: Butterworths, is an excellent example of the kind of materials and perspectives that can be utilised in this area. It also provides a good example to teachers of ‘wrap around’ teaching materials: that is, a linking commentary is ‘wrapped around’ a series of selected extracts from a range of sources. In this way, students are guided through the relevant sec-tions of source materials rather than having to wade through masses of long readings unsure of what they are looking for. Chapter 4 of Bird’s book,
‘Courts and Tribunals: Access and Equity’ looks at magistrates’ and family courts, as well as alternative dispute resolution, the role of lawyers and interpreters, and access and equity initiatives of the federal government.
The magistrates’ court as a forum of summary justice is further examined in Chapter 7 of the book. Together, they can provide useful accompaniments to students sitting in on magistrates’ court hearings themselves as part of a court observation project. In the light of the court observation and their reading of materials, students could be asked to return to the hypothetical involving Rima and identify and discuss issues of procedure which may arise in the course of a trial involving Rima suing Dr Saxton and the Council.
Many access to justice questions are reducible in the public mind to problems of language. Accordingly, the provision of legal information in community languages on the one hand and the provision of interpreters in court on the other are seen as the principal initiatives required to ensure justice for non-English-speaking background people. However, as Kathy
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65 See, for example, Australian Law Reform Commission, Multiculturalism and the Law, Report No 57, 1992, Canberra: AGPS.
66 For a useful overview of arguments pertaining to diversity on the bench, see Sean Cooney,
‘Gender and Judicial Selection: Should There Be More Women on the Courts?’ (1993) 19 Melbourne University Law Review20; on the issue of judicial education for cross-cultural awareness, see Stubbs, J, Travaglia, J, Inge, L, Cunneen, C and Chan, J, Cross-cultural Awareness for the Judiciary: Final Report to the Australian Institute of Judicial Administration, 1996, Sydney: Faculty of Education and The Institute of Criminology, University of Sydney.
Stubbs et alquote a 1995 Commonwealth Government report that nearly 90% of all Federal judicial offices in Australia are held by men of Anglo-Saxon or Celtic origin, indicating, according to the then Attorney General, ‘some bias in the selection process, or at least a fail-ure of the process to identify suitable females and persons of different ethnic backgrounds as candidates for appointment’ (at 44).
Laster and Veronica Taylor point out, simple ‘translation’ may not address the problem adequately because:
● a significant proportion of NESB people are not literate in their native languages;
● legal language can be complex and is not easily understood (even by native English speakers) so translations may not enlighten their intended audience;
● translated information often only makes sense once the audience is familiar with Anglo-Australian culture and institutions.67
Nevertheless, all students should leave law school with the skill to work effectively with interpreters. This means constructing clinical exercises that require the use of interpreters. Discussion involving the question of rights to interpreters,68 and an examination of the role of judges in deter-mining whether an interpreter is required will serve to indicate the hurdles that non-English-speaking background people may have in ‘getting a negligence case to court’.
Laster and Taylor point out: ‘Both the common law and statutory provisions concerning the right to an interpreter rely on the exercise of judicial discre-tion. There have been serious criticisms about the way in which judicial decision-makers interpret and apply these rights in practice’.69For instance, in discussing the capacity of judges to assess language proficiency, they comment:
Some judges clearly regard their own efforts to communicate in English with NESB participants in proceedings as a personal chal-lenge. After labouring in a form of pidgin English in one case, one judge concluded ‘See, you can speak English when you want to’.
Judges frequently make assessments about language competence by engaging the NESB participant in a chatty interrogation about name, address, occupation and length of residence in Australia. The apparent fluency of an individual’s replies can easily mislead an adjudicator from a monolingual and monocultural background. In another case, a ‘migrant’ overheard in the court foyer discussing football with a friend was deemed capable of giving evidence-in-chief and being cross-examined in English.70
Those participants who cross the assessment threshold and proceed with the services of an interpreter may suffer a different disadvantage:71
There are frequent references in reported cases to the likelihood that people from non-English speaking backgrounds are attempting to exploit the system through the use of an interpreter ... Mr Justice
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67 Laster, K and Taylor, V,Interpreters and the Legal System, 1994, p 4, Sydney: Federation Press.
68 Ibid, 77–84.
69 Ibid, 96.
70 Ibid, 89 (references omitted).
71 Ibid, 96–97 (references omitted).
Gobbo of the Supreme Court of Victoria has argued that parties choosing to give evidence through an interpreter ‘risk being regarded as devious, evasive or running for cover’. While judges often find particular witnesses ‘truthful and impressive’ this is rarely said of witnesses whose evidence is given through an interpreter. Such evidence often loses ‘all impact’ or its truthfulness is discounted.
Laster and Taylor cite as an example Young J in Hatzigeorgalis v Ange (No 2):72 The defendant himself did not impress as a man of truth ... [I]t appeared to me that the defendant was pretending that he did not understand English to the degree that he did and was also consis-tently endeavouring to get opposing counsel to rephrase questions in an endeavour to gain greater time for himself to work out the answers. This manoeuvre was patently obvious.
‘WHEN I HEAR THE WORD “CULTURE”, I REACH FOR MY CHEQUE BOOK’
Whereas the award of damages might be the sine qua nonof a personal injuries action, only a small proportion of accident victims actually recover damages in tort; most are compensated in other ways, through statutory compensation schemes for road accidents or work-related injury or through social security payments. Yet those accident victims who do successfully claim damages in tort do significantly better than those who are compensated in other ways. The 1978 Royal Commission on Civil Liability and Compensation for Personal Injury in the United Kingdom concluded that although only 6.5% of accident victims recovered damages in tort, this 6.5% received 45% of the total cost of compensation paid out.73
How are damages assessed for those few who are lucky enough to succeed in a tort claim?:74
The underlying idea is restitutionary: had the defendant not performed the negligent act under review, the plaintiff would not have suffered the present misfortune; hence the party responsible for the misfortune should pay an amount suitable to place the plaintiff in an equivalent position to that pre-accident.
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72 Unreported, Supreme Court of NSW, 17 June 1991.
73 Cited in Conaghan and Mansell above n 1, 56.
74 Gibson, E, ‘The Gendered Wage Dilemma in Personal Injury Damages’ in Cooper-Stephenson, K and Gibson, E (eds), Tort Theory, 1993, pp 185, 188, North York, Ontario:
Captus.