Legal Case Analysis

Introduction

The process of legal reasoning, leading to a judgement, is influenced by both principle and policy considerations. Adherence to principles of law, in concurrence with formalist thinking, is requisite to ensuring consistency, objectivity, and hence judicial fairness. However without judicial application of policy formalism failures to ensure that judgements will be reflective of societal values. Hence a balance is needed. It is using this criterion of a right principle-policy balance that my evaluation of the judgements in Marrickville Municipal Council v Moustafa [2001] NSWCA 372 is based.

Contributory Negligence

At first instance it was held that the plaintiff's contributory negligence was forty percent, to which I disagree. In comparing the degree of culpability of the plaintiff and defendant in relation to relative fault and causal contribution, Hosking DCJ appears to have implicitly applied a lower standard of care to contributory negligence than to negligence. For even after the plaintiff divulged that he had Ð''waited until it [the detonator] exploded,' Hosking DCJ was reluctant to rule definitively on the plaintiff's intention. Hosking DCJ also accepted the plaintiff's statement of facts and held causation existed presumably on the basis of scientific Ð''but for' reasoning. Such a principle based approach resulted in a judgement that effectively allows the plaintiff to take less care of his own safety than the law requires others to take for his safety. This should not be so. Whether a person suffers or inflicts harm is not a reflection on their relative ability to take precautions to avoid the dire outcome.

Possible Implications

Regardless of the apportionment of damages, Hosking DCJs judgement had potential wide-ranging implications. Economically, occupiers would need to allocate more time and resources to meeting the required standard of care. Socially, a greater focus on principle over policy, emphasising technical legal adherence over common sense evaluation, may result in increased societal perception of injustice. The remedy for which includes more explicit value judgements based not on judicial perception but empirical evidence. More transparent judicial policy considerations would, as Thomas Jefferson articulated, elucidate whether particular Ð''judgements were unconsciously warped by [external] influences,' such as a personal concern to constrain liability of public institutions. Such transparency would assist in articulating established public sentiment, thereby increasing consistency in areas of law, such as negligence, into which moral, economic, political and social 'value judgements necessarily enter.' Policy must not hide behind principle.

New South Wales Court of Appeal

An appropriate principle-policy balance is evident in Priestley JA's judgements in relation to the issues of reasonable foreseeability, class of entrant, and casual connection, to which I am in agreement.

Reasonable Forseeability

I concur with Priestley JA that the danger retrospectively apparent was not reasonably foreseeable to the Council, for whilst foreseeability may be judged on principle alone, determining reasonable foreseeability must involve a value judgement as to what should have been contemplated. Policy considerations are paramount in this regard.

The standard of safety society demands, in my opinion, is not to the extent that the Council Ð''ought to have known of the existence of the string,' given it was Ð''dirty...off-white in colour' and a considerable Ð''twenty-five metres from the children's playground.' To know of its presence would require a comprehensive, if not economically unfeasible, system of inspection. Even if the Council knew of the string, the likelihood of children choking on it is so remote that it would not necessitate removal.

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