High Court of Australia and Public Policy

‘Public policy - it is an unruly horse and when once you get astride it you never know where it will carry you. It may lead you from the sound law. It is never argued at all but when other points fail.’

The High Court of Australia has very much been in favour of judgments organically formed with legal principle as the basis with public policy supporting. Notably the Court has recognised that judicial development on the premise of public policy is flimsy, public opinion sways like trees in the wind but ironically “public policy after all is the bedrock foundation on which common law of torts stands” . Public policy indeed may lead you away from sound law and the High Court has definitely been cautioned but undoubtably it is the fundamental principle that the law is designed to shape and coexist with. Legal doctrine is in doubt prided based on it’s consistency and incremental development, but rigid conservatism by the judiciary could see a greater gap between the law and the individuals it is designed to protect. Public policy should play a more central role in judicial development, and legalism should be used in support of this.

Wrongful life has been one of the very criticised between schools of thought on whether legal doctrine or public policy be the central driver of development but the present day position is judicial reluctance to rely upon policy being the basis of decision making. In the past decade of cases, judgements focused on three elements: Duty of care, causation, and establishment of recognisable damages.

The idea of duty of care in a wrongful life scenario arises in the question of whether there is an obligation to prevent life. In the cases Harriton v Stephens, Waller v James; Waller v Hoolahan the position of the HCA can be clear that wrongful life will not be a valid cause of action. Duty of care would be provided for the foetus in utero to not be caused any physical harm by the health care provider but there would be no duty to give advice to the mother of an unborn child that could deprive the unborn child the opportunity to life . While this tort does not fall within existing torts, the court has motioned that “salient features”  should be used to identify as potentially creating a new tort . In each of these cases, there has been a vulnerability of the plaintiff and knowledge or control possessed by the defendant  and these factors should create a duty of care. While these words seem to be legalistic in nature, they reveal that public policy is a central element of the law and while the HCA may not wish to admit it. Their central goal is to protect those vulnerable with the law and should the law not extend far enough, they are extended. Similarly in Waller , the “salient features are powerful considerations supporting...a duty of care in such a case” . It is noteworthy that while legal jargon has shaped a duty of care, the central theme behind establishing salient features to determine an existence of a duty extends to a public policy theme.