Sydney Law Review
by Harold Luntz, Butterworths, Sydney, 2002, ISBN 0409313394
The first edition of this book appeared a generation ago, in 1974. The second appeared in 1983 and the third in 1990. The delay in producing the current edition has thus, by the standards of the author, been considerable, and, for the many lawyers who use and depend on the work, most painful.
To some extent the author’s claims are modest. He says that the book ‘analyses and synthesises’ the cases that have come to his attention and ‘records’ legislative changes. He expresses the hope that the book remains a ‘work of scholarship’. A larger claim is the truthful claim that the book has been rewritten from start to finish — a demanding technique rarely followed by those who prepare the second or later editions of law books, but one which substantially increases the tightness and coherence of the legal analysis which results. The author rightly complains of the volume of case law and of the radical character of the changes that have taken place in it.
It must be at least 30 years since the author began to write the work, and in that time the law of torts in general and the law of damages relating to personal injuries and death in particular have been subject to tense struggles which have had impacts on the surrounding social and even physical landscape comparable with those experienced by the German lands in the Thirty Years’ War.
Like many modern academic authors, the present author views without regret modern judicial tendencies, particularly in cases following Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty (The Wagon Mound (No 2))  UKPC 1;  1 AC 617 and Wyong Shire Council v Shirt  HCA 12; (1980) 146 CLR 40, to suck any rigour out of the phrase ‘reasonable foreseeability’. In that respect the decision of the Privy Council not to uphold the approach of Walsh J at trial, and the decision of the High Court not to return to that approach, were very significant steps. Thus the author says approvingly ([2.1.6]): ‘ “Foreseeability” has proved to be a highly malleable concept and can easily be used to mask what is truly a policy decision as to the extent of responsibility.’ The work also exhibits a pervasive assumption (eg [1.1.12]) that most defendants (apart from the State agencies or wealthy self-insurers) are insured, and an assumption (eg [1.2.27]) that the insurers, in well-regulated modern conditions, are always solvent. It is a not very well known fact that insurance companies, like other limited liability companies, have often gone into liquidation in the past. It is a better known fact that two very large insurance companies went into provisional liquidation in early 2001, and that various medical ‘insurers’ recently got into difficulties. These events took place before 12 November 2001, the date of the Preface to this work. This recently experienced combination of a tort of negligence which has a quite low threshold of liability, very wide classes of defendants who thought they had insurance cover but turned out to lack it, and very wide classes of plaintiffs who found that the defendants they had sued or were expecting to sue were uninsured and had limited assets is thought-provoking, but not discussed. But that gap is no criticism if the work is viewed as a treatise on the law as it is.
There are two striking features of the work when so viewed. One is its range. The other is the usefulness of its exposition. So far as range is concerned, all core elements of the substantive law are dealt with, and many which are ancillary are also dealt with in Chapter 11 (‘Miscellaneous’) and Chapter 12 (‘Appeals’). Each element covered within the range is examined with considerable care and in considerable detail. Only a reader who has worked through particular sections of the text, in this edition or earlier editions, and compared what is said in the cases referred to — which usually comprise all the cases worth referring to — with a view to solving a particular problem can appreciate how skilful and valuable this work is. It will be in only rare instances that such a reader will be let down, or will feel that the treatment is incomplete. Only two instances of that kind have been detected — one as a result of a gloss on recent statutory changes which may turn out not to survive, and one which may lead to a future change in the practical operation of the law, though it cannot be said that it has yet done so.
The first instance is the discussion in [11.6.7] of the inadmissibility, as evidence of its truth, of the history given by a patient to a doctor and reported to the court by the doctor. That discussion might have noted the possible impact of the Evidence Act 1995 (Cth), which applies in Federal Courts in the Australian Capital Territory, the Evidence Act 1995 (NSW) and the Evidence Act 2001 (Tas). The evidence has been said to be admissible at common law as providing the foundation, or part of the foundation, for the doctor’s opinions: Ramsey v Watson  HCA 65; (1961) 108 CLR 642 at 649. Section 60 of the legislation provides that the hearsay rule does not apply to evidence of a previous representation that it is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation. It has been said that s60 has made the history admissible as evidence of its truth: R v Welsh (1996) 90 A Crim R 364 at 369; R v Hilder (1997) 97 A Crim R 70 at 83. The reasoning is that the history is a previous representation by the patient to the doctor. It is admitted when narrated to the court by the doctor because it is relevant for a purpose other than proof of the facts intended to be asserted by the patient. That other purpose is the provision of a basis for the doctor’s opinions. Hence, though the previous representation would be hearsay if tendered to prove the truth of the facts asserted, s60 provides that the hearsay rule in s59 does not apply. Some judges disagree with this reasoning. Others point to the importance of limiting the use to be made of the evidence under s136. It may be that the doctor’s report of what the patient said should not be treated as evidence of a previous representation, but merely as evidence of an assumption to which s60 does not apply: Quick v Stoland Pty Ltd  FCA 1200; (1998) 87 FCR 371 at 378. And it may be that in truth the history is not admissible at all unless it is supported by admissible evidence from the patient or otherwise, or is admissible by reason of s72. The High Court in Ramsay v Watson  HCA 65; (1961) 108 CLR 642 at 649 said: ‘if the man whom the physician examined refuses to confirm in the witness box what he said in the consulting room, then the physician’s opinion may have little or no value, for part of the basis of it has gone.’ An opinion with no value is not relevant (both at common law and by reason of s55), and ought not to be admitted, or, if it has been admitted, ought to be excluded. These controversies have practical importance, because though voluminous medical evidence is tendered in personal injury cases, involving copious recitation of histories, scarcely any of the authors of the reports give evidence, and of those that do, hardly any give their evidence in chief structured by reference to specific assumptions about the symptoms of the plaintiff. The precise status of this mass of uncross-examined evidence thus bears analysis.
The second instance relates to paragraphs [12.2.3]-[12.2.6]. Those paragraphs discuss the standard tests controlling the power of intermediate appellate courts to receive further evidence. Though CDJ v VAJ (1998) 197 CLR 172 is referred to, greater emphasis might have been placed on the strong statements at - by the majority (McHugh, Gummow and Callinan JJ) that those standard tests were tests which applied in English common law courts in their original as distinct from their appellate jurisdiction, and that the High Court cases expounding those tests ‘have nothing authoritative to say about the admissibility of further evidence in respect of a statutory power to admit evidence on appeal’. In those cases the High Court ‘was not concerned with the terms of any modern statute expressly conferring on an appellate court a power to receive additional evidence’. To regard those cases ‘as defining the jurisdiction or controlling the discretion to admit evidence in statutory appeals is erroneous’. The first of the conditions is that the evidence could not have been obtained with reasonable diligence for use at the trial. If, pursuant to the approach indicated in CDJ v VAJ, that condition ceased to be an essential condition and became only a discretionary factor of fluctuating weight, there would be a revolution in appellate litigation by opening up the possibility of further evidence going to central questions which, though of vital significance, could have been tendered at trial.
This book has developed into one of the most outstanding treatises ever written on Australian law. It reflects great credit on its author, and on the traditions of legal scholarship on which he draws. But it poses one central paradox. The author makes it plain in the Preface, in Chapter 1, and at other appropriate points throughout the work that he regards the entire structure of the modern law as radically flawed. It is part of a system which is ‘irrational, expensive, wasteful, slow and discriminatory’: p x. he has long wanted it to be replaced by ‘a social insurance scheme that is properly integrated into the social security safety net that we must continue to provide’: p xi. He attacks the four basic principles underlying the law: the compensatory principle on the ground that it is said to reproduce existing inequalities, and even increase them by transferring wealth from the poor to the rich; the rule that damages are recovered in a lump sum on a once-and-for-all basis, on the ground that it results in an award which will ‘inevitably prove to be wrong’, creates impossible tasks for judges and leads to under-compensation; the lack of court control over how the money awarded as damages is spent, with the result that despite the payment by the defendant, the community at large often has to meet the needs of an improvident plaintiff through tax-funded social security, and with the risk of advantaging the plaintiff’s relatives rather than the plaintiff; and the onerous way in which the placement of the burden of proof on the plaintiff can operate. Yet the passionate disapproval which the author has of the present law does not distort his exposition of it or otherwise damage the quality of that exposition. Though it is not unprecedented, it is highly unusual for so substantial a work to proceed through four editions over three decades in the hands of a single author, and there will be widespread gratitude that this author has been able to perform with success the enormous tasks involved for the fourth time.
JUSTICE J D HEYDON
Justice of the High Court of Australia