ABSTRACT
Negligence cases in the High Court by nature present difficult policy choices and take place against the context of judicial recognition of the nature of Australian society, social values and human behaviour. This has been particularly evident in recent high profile and contentious cases such as Cattanach v Melchior.1 The High Court continues to struggle with its role as policy maker and policy utiliser. Some judges, notably Justice Kirby, have long advocated a more frank acknowledgement of policy concerns in negligence cases.2 However, at least officially, the majority of the High Court has shied away from considering ‘public policy’ as an explicit factor in determining liability in all negligence cases.3 Whether or not the High Court officially recognises that it explicitly considers policy matters in all cases (be they called legal policy,4
public policy, principle, community values, enduring values or whatever),5 in
negligence cases it is clear that the judges inevitably make assumptions about their society, world and human behaviour. These assumptions flavour the interpretation, creation and adoption of doctrinal principles. They create the background context against which a judge’s reasoning and decision is formed. They function as rhetorical devices that persuade the reader that a particular interpretation of the law is correct. This affects not only the manner in which principles are applied to the parties of a particular case, but also the development of the general principles of Australian tort law and perhaps even contributes to the construction of particular general social norms.6 In this chapter these assumptions are referred to as ‘social facts’.
