Leave applications no 'chance result'

Although only about one in 10 High Court special leave applications succeeded, the process was not a game of chance, former High Court judge Kenneth Hayne told the AILA National Conference in Melbourne.

“Despite the darker suspicions of the profession and litigants, the chances of succeeding in an application for special leave are directly related to the nature and quality of the point sought to raise for the court’s consideration,” he said.

“The chances of success are not determined by barrier draw, the jockey’s past record, form in past races, or weight being carried, let alone any more ephemeral consideration like the saddle-cloth number.

“What matters is whether the application raises a point which calls for the court’s determination.” The point may be a question of law that is of public importance; because there are differences of opinion in intermediate courts; or because the interests of justice generally, or in the particular case, call for the grant of leave.

Mr Hayne said parties’ perceptions were sometimes “obscured by a sense of grievance” which made them view leave applications as “a lottery”.

“But, no matter how understandable that kind of reaction to the loss of an application for special leave, it is not a game of chance.”

Mr Hayne said any lawyer asked to advise a client about the prospects of success in making or defending any claim would ultimately speak in terms of probabilities. “Often, the lawyer will try to quantify the probabilities. And the lawyer will always try to take proper account of what would be the consequences of success and failure in the claim. How much is at stake? What are the consequences of failure?”

Although opposing lawyers would make the same kinds of assessment, the considerations in play often differed; most clearly in claims for damages for personal injury. “For a plaintiff in a claim for damages for personal injury, especially a seriously injured plaintiff, the consequences of success are very important and the consequence of failure may be only that there is another creditor in an inevitable bankruptcy. By contrast, for a defendant, especially an insured defendant, the consequences include the effect on other claims made or yet to be made.”

Mr Hayne said the law of negligence “remains unsettled, but not for want of trying”. The High Court had made “repeated attempts to identify principles and provide guidance and predictability”.

“The cheerfully simple triplet of ‘duty, breach and damage’ has not always yielded decisions that are seen by the profession as giving clear and certain guidance.

“In part the difficulties stem from what has been called the ‘imperial march of negligence’ in which too many legal problems have been framed as claims in negligence rather than by reference to other more relevant forms of claim. That is, a claim in negligence is pursued instead of a claim in nuisance, or a claim in trespass or some other intentional tort or instead of a claim under a contract or under consumer protection laws.

“Because a meritorious claim is framed in that way, the boundaries of the tort are tested and stretched by trial and intermediate court judges who (understandably) do not want the pleading practices of a plaintiff’s lawyer to preclude success in a claim which, framed otherwise, would have succeeded.”

But Mr Hayne said whether, or how often, cases were “forced into the mould of negligence”, when the claim might better have been framed otherwise, may be less important than recognising another, connected, but more deep seated, difficulty about the way some approached the tort of negligence.

Often a claim was framed in negligence because the plaintiff has suffered some legally recognisable form of damage and it was possible, after the event, to say the defendant, had he or she acted differently, could have prevented or avoided the plaintiff suffering that damage.

After the event, you could show some step could have been taken to prevent the damage, so it was said that the defendant should reasonably have foreseen that a failure to take the step could cause damage of the kind sustained.

“Hence, so the argument runs, the defendant owed a duty of care which was broken and caused damage. You can hear the advice being uttered: There’s at least a sporting chance we can get up. Sue! They’ll settle anyway.”

Mr Hayne said analysis by reference only to a plaintiff’s specific circumstances was “too confined”.

Identifying a duty of care was “a difficult area”, which many said was insufficiently predictable. But “what’s not predictable is novel claims that extend the reach of the law of negligence”.

Justice Mason’s description in Wyong Shire Council v Shirt of how to decide whether there had been a breach of the duty of care had long been accepted as the authoritative statement of principle.

“More particularly, his reference to ‘consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have’ has come to be called ‘the Shirt calculus’.

Mr Hayne said it was obvious that, when applying the Shirt calculus, the greater the risk and probability of a risk’s occurrence and the smaller the expense, difficulty and inconvenience of taking alleviating action, the better the chance of establishing breach.

“It is always tempting for a plaintiff to say a simple $50 warning sign would have prevented the plaintiff suffering the catastrophic injury he or she has sustained. But, in a series of cases which started in the later 1990s, courts emphasised the importance of understanding properly what would be the necessary alleviating action that should be taken into account in applying the Shirt calculus.

“So, in Romeo v Conservation Commission (NT) the relevant question was not whether a sign would have warned the plaintiff of the danger of slipping over the edge of a cliff at the point where she fell. The relevant question is what would it have taken to prevent a person falling from any of the cliff areas controlled by the commission, not just the particular point from which the plaintiff fell.”

Mr Hayne said the other great defect in considering only whether a defendant could have done something to avoid the damage suffered by the plaintiff was that it did not examine whether the plaintiff owed the defendant a duty of care and, if the defendant did owe a duty, what was its content.

“Many of the difficulties that now attend the law of negligence are difficulties about questions of duty of care. The High Court has refused to discard the requirement to establish a duty of care.”

He said parties had to make informed decisions on whether to litigate or defend claims. If risks, rewards and chances of success were properly assessed, parties could not later argue they made a choice on “imperfect information”. Although, with hindsight, it was often easy to say the costs to the parties, and the judicial system as a whole, were too large.

“From there it is very easy indeed to move to outright condemnation of the ‘sporting chance’ approach to litigation. But, tempting as these criticisms may be, their accuracy depends on whether, in prospect not hindsight, the parties made a proper assessment of their risks, rewards and chances. And when deciding whether they did, it is necessary to recognise that the interests of the parties will sometimes differ radically.”