Dietrich, J --- "Teaching torts in the age of statutes and globalisation" [2011] LegEdDig 20; (2011) 19(2) Legal Education Digest 12

• Papers from the tort law academic workshop teaching torts in the age of statutes and globalisation

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Papers from the tort law academic workshop teaching torts in the age of statutes and globalisation

J Dietrich

Torts Law Journal, Vol 18, No 2, 2010, pp 141-156

Many lawyers, it seems, do not like statutes. As Professor Beatson has said, many see ‘statutes as evil devices marring the symmetry of the common law’. Those who teach the law seem to have a particular aversion to statutes.

I would suggest that torts lawyers have displayed a similar bias against statute; indeed, teachers of torts (and contracts) have continued to assert until quite recently (and perhaps still assert), that they are concerned with common law, that is, case law-based, subjects.

If such a position was ever sustainable, it is certainly no longer sustainable today, and not in the law of torts. Most spheres of life are now regulated by statute. Many of the fundamental principles of negligence law are now either contained in statute, or at least have been modified by the ‘Civil Liability Acts’.

The predominance of statute in our law poses many challenges for those of us who are interested in teaching, researching, or learning the law, including as practitioners seeking to find the right solution to a particular problem. In part, as others have pointed out, this challenge arises from the complexity of the interaction between statute and common law. In the context of torts law, Professor Barbara McDonald has provided a detailed account of the Civil Liability Acts and their impact on the common law of torts. For now, it is only necessary to note that despite the tendency in our jurisprudence to treat common law and statute as ‘oil and water’, as Gleeson CJ observed in Brodie v Singleton Shire Council, ‘Legislation and the common law are not separate and independent sources of law; one the concern of parliament, and the other the concern of courts. They exist in a symbiotic relationship’.

The difficulty is getting the right balance between giving students an accurate picture of the current law, without getting bogged down in too much detail, such that students may lose sight of the wood for the trees. The danger becomes that torts students do not even understand the most fundamental and important general concepts.

Putting the problem in its simplest terms, is there any point in teaching the details of, say, the NSW Motor Accident Compensation Act 1999, if more than half of the students come from interstate or from around the globe? There are significant differences between the relevant Acts in each jurisdiction.

The problem is compounded by the fact that even in a single jurisdiction, the interaction between various statutes, and their scope of operation, can be messy, to say the least. In a 2007 decision of the NSW Court of Appeal, Ipp JA commented that the interaction and operation of the various statutes dealing with civil liability has resulted in a complex, illogical ‘hodge-podge’, so that there is no discernible legislative purpose.

Such complexity may be exacerbated where Federal legislation, state legislation and the common law, all potentially operate in the context of a particular fact scenario. How, then, does one deal with these legislative complexities and jurisdictional divergences, especially when teaching students from many different jurisdictions?

Perhaps there is not really a problem, or at least, the solution is readily at hand. For one could take the view that when teaching, the details of particular statutes (or for that matter, case law) in a specific jurisdiction are largely irrelevant. Instead, the focus must be on teaching students fundamental legal techniques: specifically, for example, (1) teaching skills such as reading cases, interpreting statutes, identifying legal issues in complex factual scenarios and applying the law to those problems; (2) focusing on giving the students an understanding of the key concepts and principles that recur throughout the ‘common law’ jurisdictions (in relation to negligence law, for example, reasonable care, ‘but for’ causation, volenti); and (3) teaching students about the varying interactions between statute and case law and giving them exposure to issues of statutory interpretation.

So, it may well be perfectly justifiable to teach students in the Australian Capital Territory, the law of New South Wales; or to teach the English or (if there were such a thing) Australian law of torts, in a university in the United States; or even to ‘make up’ law in order to teach a particular legal skill, as is often done in teaching statutory interpretation.

However, the possible solution to the problem, of focusing largely on broad principles and thus not tying oneself to the more specific and detailed law of a particular jurisdiction, comes with a danger. The danger is that inadequate attention is paid to statute. I would suggest that this danger has, indeed, manifested itself, both generally and in torts. The problem becomes, not that students are unaware of the fact that the general principles that they have learnt have been the subject of minor modification as a result of, say, s 7(1)(c) of the No Great Consequence Act, but that students are almost oblivious to statute law altogether, let alone aware of its central importance and function. I would suggest tentatively, that there are two related reasons for this. First, few courses on torts, or indeed, even some of the textbooks, give a sufficient and representative treatment of statute law, and address adequately the importance of statutes as a source of relevant and operative law. There appears to be still a considerable bias against statute. Second, inadequate attention may be being given to the third of the three important tasks outlined above, namely, of teaching the interaction between common law and statute and statutory interpretation.

In the third edition of Balkin and Davis, Law of Torts, the various Civil Liability Acts tend to be relegated largely to the footnotes. For example, the discussion of causation notes that there is now a ‘statutory basis’ for addressing causation questions, with the relevant legislation cited in a footnote to a brief paragraph, and adds the words: ‘It is assumed that in interpreting these provisions the courts will look to the [needless to say, common law] general principles stated in this chapter’. The recent fourth edition of the work has not changed its approach. By way of contrast, other sections of the book demonstrate a much more integrated approach to statute, successfully merging discussion of general principles without sacrificing an accurate portrayal of statutory sources and developments.

Even less attention is paid to statute in the fourth edition of Trindade, Cane and Lunney, published well after the introduction of the various Civil Liability Acts. Some of the chapters make only sparse and passing reference to the Civil Liability Acts, even where such statutes have had a dramatic impact on the law. And further, the legislation is treated completely separately from the common law without any attempt to integrate the two.

Here, textbooks reflect (or dictate) what is probably classroom practice. Hence, Balkin and Davis discuss at length Cattanach v Melchior (whether a negligent doctor should bear the economic losses incurred by parents as a result of negligent sterilisation procedures). The discussion places considerable emphasis on the case itself and only notes the fact that, in some jurisdictions, there have been legislative responses immediately following that decision. There is a danger that the discussion of the topic is overshadowed by the case law, and that the ultimate legal position, now encapsulated by statute in some jurisdictions, is given little attention.

Textbook authors’ and university lecturers’ bias against statutes appears to be shared by the profession; some practitioners and judges seem reluctant to delve into the quicksand of statute as well. Kirby J was moved to chastise lower courts for ignoring statute in Joslyn v Berryman, in which he said:

In this case, the issue ... was not therefore to be decided by reference to ... common law, as modified by the apportionment statute. It was governed by ‘enacted law’. The duty of the Court of Appeal was therefore to apply that enacted law. This is yet another instance in which applicable statute law has been overlooked in favour of judge-made law.

It is important that we do not largely ignore statutes, otherwise students may gain a false impression as to their importance as a source of law, and we may fail to explore the complex and myriad ways in which statute and common law rules interact, as well as issues of statutory interpretation. The approach of teaching torts law as if it consisted of a series of common law principles, with only passing references to some of the most important statutes that may modify some of those fundamental principles and their operation, simply is not an option, in my view. The second approach is to give more than a passing reference to statute, so that the materials reflect at least those significant statutory provisions that encapsulate or modify important principles (eg, breach of duty), and also note legislation that operates in specific, factually important, spheres (eg, motor vehicle accidents). The third approach, one that I suspect is not adopted by too many torts teachers, at least, would be to attempt to give students a full overview of all the statutory schemes in place. On such an approach, one would still, of course, teach the general principles, as modified in all circumstances by statute, but one would also attempt at least to alert students to the many factual contexts in which statutes have a specific sphere of operation.

All three of these approaches have their own difficulties. I have identified the problem with the first approach already. The second approach suffers from the problem that it may be difficult to do justice to all the major areas and topics, as well as to all the general principles to which the students need to be introduced. Students may have an accurate picture of where the law of torts comes from, but may not have a sufficient or adequate understanding of some of its key principles.

The third approach is probably the least desirable, because it may leave students bogged down in the messy details of numerous statutes, albeit ones that may all be relevant to the resolution of particular factual problems. Consequently, students may be left confused, so as not to have grasped the most basic concepts. As noted above, such approach may be motivated by a desire to ensure that all relevant law is thoroughly canvassed, so that graduates of that subject could go out into the workforce and solve a legal problem with the knowledge they have acquired.

How to resolve these dilemmas? I guess, like most teachers, I have tended to just muddle along and hope that I achieve a happy balance somewhere between the first and third approaches. But if the second approach seeks to strike such a balance, it means that obviously, not all topics can thus be covered in equal depth. Some important topics must be largely ignored, sacrificed on the altar of time and pragmatism. Other topics must be dealt with on a fairly superficial basis. But at least some topics are covered in depth and the students are exposed to a detailed analysis of some relevant general principles, while also being made aware of the important ways in which statutes operate to modify, add to, or displace those principles.

One example suffices. When considering the defence of contributory negligence one could point out that in one recurring context in which the defence arises, namely, that of passengers entering a car with a drunk driver, there are now specific provisions in some jurisdictions that deal with that problem. Hence, Joslyn v Berryman. This may provide a departure point for considering the merits of the fact-specific legislative approach, compared to the more general approach dictated by the common law. And it may provide a departure point for a discussion of statutory interpretation.

In particular, it may be desirable to highlight the role of negligence law as one of the significant sources of personal injuries compensation law. Hence, such a new source of no-fault compensation in the motor vehicle accidents context is important (in New South Wales) and worthy of consideration. We may wish to focus on the boundaries drawn by those recent amendments, issues of interpretation surrounding those amendments, and perhaps the arbitrariness of the boundaries that have been drawn. The choices as to what we teach may thus reflect fundamentally different views as to what we are trying to achieve and what we conceive the subject of torts to be about.

In other circumstances, choices as to which topics to focus on or give more detailed treatment, do not depend on such philosophical differences. I have stressed already that what is really important is to give students a sense of the various ways in which the common law and statute interact, as well as a basic understanding of statutory interpretation issues. Provided that our graduates also have adequate research skills to find the relevant law, then we may well have done all that we are required to do. This does mean teaching a Canadian student, studying in New South Wales, some of the details of the Civil Liability Act 2002 (NSW), even where such details are not replicated in other jurisdictions. But the relevance of those details rests in their utility as a means of teaching the basic legal research, writing and analysis skills. As previously mentioned, in relation to statute, it is important, in my view, that students are familiarised with the various ways in which statutes interact with the common law and how statutory provisions are interpreted and read. It is appropriate to turn to this issue.

The relationship between statutes and case law is complex. At one extreme, a statute may be a code and completely displace the common law. Codification, however, of an entire area of law ‘is not an activity that is engaged in at all commonly in common law countries’. However, ‘codifying’ part only of an area of law is an important legislative activity, for example, codifying a particular concept within a larger context, ‘that is covering the field on a discrete subject or concept’. Clearly, the Civil Liability Acts are, at most, only partial codifications. A major issue that therefore arises is the continuing relevance, if any, of common law case law.

Some parts of the Civil Liability Acts codify and change aspects of the common law of negligence. That is the case with the sections that state the general principles applicable to determining breach of duty (eg, Civil Liability Act 2002 (NSW) s 5B). In effect, these sections ‘tinker’ with the common law test for breach of duty. They restate the threshold test of breach, as well as the calculus of negligence factors to be considered in determining whether, ultimately, there is a breach, in slightly different terms to those of the common law principle contained in Wyong Shire Council v Shirt. Yet even after this change, probably few teachers teach breach of duty of care without detailed reference to Wyong v Shirt. Thus it becomes all the more important that we explain why it is that the case is still relevant, if at all. Is it being referred to as the relevant source of the law and applicable principle (which in this case would be misleading)? Is it relevant as an aid in interpreting an operative statutory test (if it is in essence the same test)? Is Wyong v Shirt being used to reason analogously when applying a different statutory test? Is it relevant as a useful factual example of the application of a different, but sufficiently similar, test? Or is the case relevant only as a historical prelude to the current law? Balkin and Davis suggest that ‘when interpreting this legislation, the courts will be guided by the principles already developed by the common law over the previous century or more’. But this assumption avoids the question of what form such guidance takes. More importantly, the assumption may obscure the correct approach that where there is governing statute, the starting basis for analysis must be the statute.

Since the Civil Liability Acts displace the common law in some of its field of operation, but do not cover the field, one particular challenge may be to determine where precisely only the common law principles apply, where only the statutory provisions apply, and where both still potentially apply, as well as where other, specific legislation applies.

I turn briefly to the issue of statutory interpretation: obviously, torts law is not a forum for a fully-fledged course on the general principles and specific rules of statutory interpretation, given the constraints of time. However, it is arguable that it still important to give students as much exposure to statutory interpretation questions as possible. For example, it might be worthwhile to consider the statutory threshold limits placed on damages for voluntary services, in order to show students the difficulties of interpretation that can be created by one little word such as ‘or’.

We must be selective in what we teach. But in making the selection we must resist the temptation to focus only on general principles, often found in or derived from common law, at the expense of statute. In selecting what content we teach, we should bear in mind that we give the students an accurate picture of the full range of the sources of our law, give students a sense of the many ways in which statute and the common law interact, while also giving students the opportunity to learn and apply skills of statutory interpretation. No matter how messy, inconvenient or objectionable we may find particular exercises of legislative power, it is our duty, as law teachers, to arm our students with a capacity to find and apply the law as it is, never forgetting of course, that we assess such law with a critical eye focused on the aim of achieving justice.