International Construction Law Review
PROFESSIONAL NEGLIGENCE
THE HON SIR ANTHONY MASON, AC, KBE *
A former Chief Justice of the High Court of Australia
As long ago as 1937 Sir Owen Dixon said: “The law of tort has fallen into great confusion … and no light is shed upon a given case by large generalisations about [long-established rules of law].”1
If the first part of that statement was correct in 1937, our experience of the law of tort, especially the law of negligence, over the ensuing 70 years, has endowed the statement with unassailable authority. This experience has served only to make the confusion that existed in 1937 worse confounded.
In this paper I intend to identify the factors which have contributed to our present condition which is, in essence, a reaction to a long period of continued expansion in liability. These factors have had an impact on the law of professional negligence as on other areas of liability in negligence. I intend then to look briefly at what the future may hold and, in this respect, I shall refer to procedural developments affecting construction law cases in Australia and what may flow from them.
Donoghue v. Stevenson2 and the quest for an instructive principle
For most of the past 78 years there was an expansion in liability in negligence. This general expansion of liability affected the liability of professionals in common with others. The expansion, which gathered pace in the 1970s and the 1980s, came to a halt in the 1990s. The expansion was not linear. As often happens, judicial decisions do not move in one direction only; very often the courts, having taken two steps forward, take one step back.
The expansion began, of course, with Donoghue v. Stevenson
3 where the manufacturer of a soft drink was held liable for physical injury to a consumer caused by contamination of the soft drink attributable to negligence. Had the effect of the decision been confined to its facts, or even to producers, its impact would not have been so radical. With the passage of time, however, the neighbour principle, as stated by Lord Atkin, was regarded as a general principle of liability, namely, that: “You must take
* This address was given at the Society of Construction Law Hong Kong International Conference on 7 December 2010.
1 Victoria Park Racing and Recreation Grounds Co Ltd v. Taylor [1937] 58 CLR 479 at 505.
2 [1932] AC 562.
3 Ibid.
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