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Judicial Use and Construction of Social Facts in Negligence Cases in the Australian High Court

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Judicial Use and Construction of Social Facts in Negligence Cases in the Australian High Court Judicial Use and Construction of Social Facts in Negligence Cases in the Australian High Court Author Burns, Kylie Louise Published 2012 Thesis Type Thesis (PhD Doctorate) School Griffith Law school DOI https://doi.org/10.25904/1912/2875 Copyright Statement The author owns the copyright in this thesis, unless stated otherwise. Downloaded from http://hdl.handle.net/10072/366916 Griffith Research Online https://research-repository.griffith.edu.au Judicial Use and Construction of Social Facts in Negligence Cases in the Australian High Court Kylie Louise Burns BA LLB (Hons) LLM Griffith Law School Arts, Education and Law Griffith University Submitted in fulfilment of the requirements of the degree of Doctor of Philosophy November 2011 Abstract Judicial Use and Construction of Social Facts in Negligence Cases in the Australian High Court This study examines whether and how Australian High Court judges use social facts (‘SF’) in their reasoning in negligence cases, and what factors explain judicial use and construction of SF. SF are statements about society, the world, and the nature and behaviour of institutions (including legal institutions) and human beings. They are statements made as part of judicial development and general application of law, rather than as part of adjudicative fact finding. Negligence cases often contain statements about the world, human beings and institutions. They are often intimately concerned with the behaviour of people and institutions, and the nature of the world and society. This is not a recent phenomenon. The earliest negligence judgments in the United States, the United Kingdom and in Australia included judicial SF statements. However, even in the earliest Australian negligence cases there were differing judicial approaches to the use and construction of SF. Despite the apparent widespread judicial use of SF in negligence cases over many years and differing judicial approaches to SF, the role of SF in judicial reasoning in negligence cases has been subsumed into discussion of ‘policy’ factors and has been largely ignored by scholars. This study aims to fill that gap. Its primary objectives are to explore whether and how judges use and construct SF in Australian High Court negligence cases, what factors explain judicial use and construction of SF in negligence cases, and the wider implications of judicial SF use for understandings and accuracy of judicial reasoning in negligence cases. The study operates within an interpretative epistemological framework. It adopts a social constructionist approach to analyse how judicial knowledge of SF is ‘created, disseminated and entrenched’.1 The study uses a content analysis methodology to analyse negligence judgments of the High Court of Australia from 2001-2005 as relevant texts. Content analysis is an empirical method that involves the collection of a set of documents, reading the documents systematically, recording consistent features of 1 William Haltom and Michael McCann, Distorting the Law: Politics, Media and the Litigation Crisis (2004), 13. ii the documents and drawing inferences from the data recorded.2 The study also utilises the more traditional methods of literature review and legal analysis of cases and legislation. Part 1 (Chapters 2 and 3) provides the background to the content analysis of High Court negligence cases from 2001-2005 undertaken in this study. Chapter 2 discusses the content analysis methodology adopted for the study. It focuses on the suitability of this method to address the research questions investigated in the study, and details the approach taken to the use of the method particularly details of coding. Chapter 3 reviews the existing scholarship on the meaning of the term SF, outlines the definition of SF used in this study, and drawing on data from the content analysis discusses the range of roles played by SF in judicial reasoning in negligence cases. Part 2 (Chapters 4-6) outlines and analyses the results of the content analysis of High Court negligence judgments from 2001-2005. Chapter 4 outlines the general findings of the content analysis. Chapters 5 and 6 discuss the qualitative results of the content analysis. Part 2 argues that Australian High Court judges do use SF in their reasoning in negligence cases, and that SF play a range of roles in judicial reasoning in negligence cases. However, judicial use and construction of SF can result in judicial error, SF which conflict with empirical evidence, and judicial use of unreliable and inaccurate SF. It can also result in the exclusion from judicial reasons of SF which address those most marginalised by the law and SF which reflect less dominant cultural world views. Part 3 (Chapters 7 and 8) proposes an explanatory framework for judicial use and construction of SF. It argues that there are complex inter-related and interdependent legal, institutional, individual, cognitive and cultural factors that explain how judges use and construct SF. Chapter 7 discusses the ‘external’ legal and institutional factors. These include the influence of law and Australian approaches to the use of policy in negligence law, the rules of evidence (including the doctrine of judicial notice), and the adversarial system and institutional nature of the Australian High Court. Chapter 8 discusses factors ‘internal’ to Australian High Court judges which may impact on the way those judges use and construct SF. These factors include the effects of Australian legal culture on judges, 2 Mark A Hall and Ronald F Wright, 'Systematic Content Analysis of Judicial Opinion' (2008) 96 California Law Review 63, 65. iii the effects of individual characteristics and background of Australian High Court judges, the effects of cognitive factors including heuristics and biases and group determination on judicial reasoning, and the impact of cultural worldviews. Part 4 (Chapter 9) summarises the findings of the study and suggests that judicial use and construction of SF is a ‘wicked’ problem. It argues that the findings of the study generate challenges for existing understandings of judicial reasoning in negligence cases, and for understandings of how legal, institutional, individual, cognitive and cultural factors affect judicial reasoning. The chapter suggests a range of options for reform for future consideration and research. Finally, the chapter notes a range of matters for future further research that emerge from the findings of the study. iv Statement of Original Authorship This work has not been previously submitted for a degree or diploma in any university. To the best of my knowledge and belief, the thesis contains no material previously published or written by another person except where due reference is made in the thesis itself. Signed:------------------------------------------- Date:--------------------------------------------- v TABLE OF CONTENTS ABSTRACT .............................................................................................. iii STATEMENT OF ORIGINAL AUTHORSHIP ................................... vi TABLE OF CONTENTS ...................................................................... vii TABLE OF FIGURES .............................................................................. x ACKNOWLEDGEMENTS ................................................................... xii PRIOR PUBLICATIONS ...................................................................... xiv CHAPTER 1: INTRODUCTION: SOCIAL FACTS IN AUSTRALIAN HIGH COURT NEGLIGENCE CASES ................................................. 1 INTRODUCTION.................................................................................................................................. 1 1. SIGNIFICANCE AND CONTRIBUTIONS OF THE STUDY ............................................. 7 2. KEY RESEARCH QUESTIONS ................................................................................................. 19 3. AN INTERPRETIVIST EPISTOMOLOGICAL FRAMEWORK AND SOCIAL CONSTRUCTIONIST APPROACH TO METHODOLOGY ............................................. 22 4. KEY ARGUMENTS AND THESIS STRUCTURE ................................................................ 29 CHAPTER 2: CONTENT ANALYSIS METHODOLOGY ................. 33 INTRODUCTION............................................................................................................................... 33 1. AN EMPIRICAL METHOD: CONTENT ANALYSIS OF CASE LAW .......................... 35 2. SELECTION OF CASES ............................................................................................................... 40 3. CODING, RELIABILITY AND VALIDITY OF DATA .................................................... 48 4. CONTEXT OF THIS STUDY ..................................................................................................... 56 CONCLUSION..................................................................................................................................... 61 CHAPTER 3: WHAT ARE SOCIAL FACTS? WHAT ROLE DO SOCIAL FACTS PLAY IN JUDICIAL REASONING IN NEGLIGENCE CASES? ........................................................................ 67 INTRODUCTION............................................................................................................................... 67 1. SOCIAL FACTS ARE NOT ADJUDICATIVE FACTS. ....................................................... 69 2. SF PLAY A RANGE OF ROLES IN JUDICIAL LAW-MAKING..................................... 76 3. SF COME FROM A RANGE OF SOURCES .........................................................................
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