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Tort Law, Policy and the High Court of Australia

This article concerns the High Court of Australia's use of policy in deciding torts cases, particularly in negligence. It examines the Court's stated position on the use of policy reasoning and compares this with its actual practice. The argument made is that courts should be wary about the use of policy-based reasoning because policy is 'unstable' or incapable of consistent application. Courts are limited in their ability to predict the future consequences of different legal rules for disparate parties. Moreover, reasonable minds will differ as to what policy demands. These matters are illustrated by reference to recent cases concerning wrongful conception and wrongful life. The conclusion is that, in doubtful cases, courts should apply what the author describes as the 'golden rule of negligence': that duties of care are to be recognised where there are substantial factual features linking the parties, creating pathways to harm. The onus should lie upon either defendants or courts themselves to supply convincing policy reasons for departing from this rule. The result is that the High Court arguably decided the wrongful life case of Harriton v Stephens incorrectly; the decision should have been in favour of recovery on the basis of the doctor's obvious capacity to cause the plaintiff to incur substantial financial costs relating to her disability.