The current Australian torts law places a significant weight on policy considerations when dealing with public authority cases This Australian common law tradition confers public authority undue immunity in regards to their tortious liability against the public at large Australian judiciary s treatment to public authority liability was strongly influenced by the U K House of Lord's judgments including X v Bedfordshire County Council and M v Newham London Borough Council In Sullivan v Moody the allegation of sexual abuse resulted in the breakdown of the appellants marriages but the HCA imposed no criminal liabilities against negligent actions by the medical practitioner The HCA submits that imposing a duty of care to medical practitioner would be inconsistent with the proper and effective discharge of the defendant s obligations to hold the children s interest as paramount A common law duty of care would cut across the whole statutory system set up for the protection of children at risk In Cran v State of New South Wales the police failed to get a certificate of analysis by the court date and the plaintiff was improperly detained in jail for 62 days
The New South Wales Court of Appeal found that there was no duty of care owed to the plaintiff for the investigation of the case and policy considerations were paramount despite factual considerations including dependence vulnerability of the plaintiff were considered Unlike British blanket exclusionary rule in Australia there is no clear and universal test or single guiding principle on when should public authority owe a duty of care However the current standard regarding tortious liability of public authorities is still problematic in that they put too much emphasis on policy consideration while marginalized factual consideration This skewed approach to policy consideration is dangerous in that it could lend itself to abstraction and generalisations What the majority in Sullivan and Cran fail to address was whether treating policy considerations as paramount creates an overall beneficial effect to all the parties at stake The policy consideration in Sullivan favoured protecting children s interest at the expense of other considerations Therefore doctors should not bear the liabilities if conducts and accusations were made with the purpose of protecting children But the argument put by the plaintiffs in Sullivan was that the child's interests within the relevant statutory framework included the maintenance of a healthy and balanced family environment and a satisfactory relationship with other members of his family Hillman case further supported this point by stating that a false accusation regarding whether one committed the abuse could backfire against the child's interest as much as the interest of the person being wrongly accused In Cran policy consideration exempted the policeman's duty of care to the inmate despite he was grossly negligent carrying out his investigations The HCA reasoned that impose a duty of care on the prison could lead to change in penal decision making process and the functioning of the police which are of paramount importance
However, this approach could give rise to serious human rights issue if the inmate cannot hold the policeman liable Dr Varuhas argues in his article Damage can play a central role in protecting and vindicating those individual rights considered fundamental to the maintenance of a civil and democratic society upholding other fundamental principles such as government under law and discipline the exercise of public power as well as being of great practical significance for individual victims who have suffered loss or injury through violation of their basic rights Policy consideration granting police unimpeded power could deprive citizens basic rights to trial by jury stipulated in the Australian Constitution and condone derelict police investigation From the aforementioned cases we can see that the interest of public authority and the relevant party are not necessarily divergent And exempting public authority liability could lead to more serious and far reaching problems Is duty requirement good Unsettled definition of torts law means there is no single remedial approach The higher courts approach has been stunted problematic jurisprudence characterized by a vacuum of concrete and coherent rules and principles to guide award of damages and quantum As there is no legislative constraint to confine judicial discretion policy consideration needs to be conferred with a reduced significance in cases involving public authorities whereas breach should be given with a more important role
Lord Bingham seems to welcome a shift in emphasis to breach as recovery for an actionable harm would not unjustly be barred by policy considerations but the problem would be addressed within a broader matrix of salient features And the margin of discretion The emergence of the new remedy and increased availability of damages against public authorities may give rise to legitimate concerns Breach This is where Bingham s dissent provides a somewhat nuanced solution to the blunt rigidity of the duty framework Although Bingham is not rejecting the duty principle he does suggest that the introduction of concepts adapted to the kind of balancing just mentioned is better done in the context of a full consideration of the facts which would usually mean it was done at the breach stage Indeed as noted by the court in Hillman v Black breach requires and allows closer scrutiny of each party's actions and choices
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