The Value of Compassion in the Law

Supreme Court Tipstaff and Researchers Conference

I am human, and I think nothing human is alien to me.”
Terence: Heauton Timorumenos 

What is compassion and why am I raising it today?

I am not a moral philosopher. In fact, my least favourite law subject was jurisprudence. My primary interest in the law was always (and remains) its function as a real world problem-solving system. From the moment I first opened a book about torts in my first semester of a graduate law degree, I could see that the law was a system and that the system operated by reference to rules and principles. To me this was immensely appealing. Here was a way to solve people's problems, to resolve their disputes, involving civilised and rational debate by reference to knowable rules and principles. As I continued in the law, the marvellous subtleties and nuances of this system continued to expose themselves. The rules and principles were knowable but infinitely adaptable. They could both expand and contract by logical processes that had to be explained and reconciled with the system as whole. The law is as wide and as deep as human experience. The procedural framework within which the law resolves dispute, including disputes about what the law is and what it should be, also involves a system of knowable but infinitely adaptable rules and principles. Both the substance and the procedure of the common law reflect the human values of the societies from which they emerge involving the dignity of the person, the autonomy of the person, and the relations between persons.

Despite my preferred problem-solving focus, I can now see why the human underpinnings of the law, in both its substantive and procedural dimensions, are so deeply satisfying for me. They are both manifestations of a fine balance of multi-faceted, and in part irreconcilable, conceptions of what it is to be human. They reflect human thought over centuries about the nature of being human. The balance is tested and re-tested against human experience and is undergoing a constant process of recalibration. This entire enterprise is carried out in the context of procedural rules in which the fundamental requirements are the reality and appearance of fairness regulating a civil and rational debate between those holding opposing points of view who have a direct interest in the outcome. The rules cannot be escaped. In the common law, the only weapon is words. The words able to be deployed must be civilised and rational to be relevant. The words must be deployed respectfully and recognising the basic human dignity of all involved. The result does not depend on the loudest voice. It does not depend on the deployment of the most aggressive or hurtful words. There is no capacity for recourse to force if words fail. In an increasingly troubled world, the legal mode of decision-making, while imperfect, has much in its favour.

The substantive rules and principles of law are also a sophisticated and nuanced emanation of fundamental ideas about being human. These ideas are familiar to us. They include such concepts as:

• humans are a reflection of the divine/humans are meta-conscious (they think about thinking);
• being meta-conscious, humans suffer uniquely;
• humans have free will;
• humans have individual autonomy;
• humans exist in relation to other humans;
• humans are capable of rationality;
• humans are capable of irrationality;
• humans are equal in dignity and value;
• humans are unequal in capacity and circumstances;
• humans are inherently good and will do good; and
• humans are inherently bad and will do bad.

We can see these big ideas working their way through the development of the common law. Let us go back to torts and the famous question posed by Lord Atkin in Donoghue v Stevenson: "Who, then, in law is my neighbour?" [2] The case is about the alleged liability of a manufacturer of a soft drink to a person who was shocked when she saw the decomposed snail come out of the bottle a friend had bought for her which she had subsequently consumed, and then came down with gastroenteritis. Why was Lord Atkin asking who was whose neighbour?

The reasoning of the judges in Donoghue v Stevenson exposes the process by which the common law develops, reflecting tides of ideas about being human.

Lord Buckmaster referred to the difference between the case at hand and Langridge v Levy[3] involving the sale of a gun known to be dangerous which exploded when used by the purchaser's son. The gunmaker was liable in tort to the son on the basis, however, of fraudulent misstatement, not the inherently dangerous but undisclosed nature of the product sold. His Lordship referred also to Winterbottom v Wright in which a third party was injured by a badly built carriage but had no rights as against the carriage maker, with Alderson B saying: "[t]he only safe rule is to confine the right to recover to those who enter into the contract; if we go one step beyond that, there is no reason why we should not go fifty".[4] He also referred to Longmeid v Holliday, a case of an exploding lamp, where Parke B said that it would be going "much too far"[5] to impose liability on a manufacturer or vendor for unknown but reasonably discoverable defects in items not inherently dangerous. This, his Lordship said, reflected the principle explained by Lord Sumner in Blacker v Lake & Elliot Ltd that "[t]he breach of the defendant's contract with A. to use care and skill in and about the manufacture or repair of an article does not of itself give any cause of action to B when he is injured by reason of the article proving to be defective". [6]

The exceptions to this principle of contractual but no other liability were said to be inherently dangerous items and known danger of a particular item. Inherently dangerous items attracted a "peculiar duty to take precaution" when it is known others will come into proximity with the item. A known danger created a duty to warn such that silence would be a species of fraud.[7]

Unsurprisingly, Lord Buckmaster did not see a ginger beer bottle as inherently dangerous. His Lordship was scathing about the nearest authority, George v Skivington,[8] involving a noxious hair-wash in which a manufacturer was held liable to a user who was not the purchaser. He said he did not "propose to follow the fortunes of George v Skivington; few cases can have lived so dangerously and lived so long".[9] Who knew a hair-wash could be so exciting?

He was equally scathing of the generality of principle expressed by Brett MR in Heaven v Pender that:

… whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger…[10]

Lord Buckmaster said the cases on which Brett MR relied involved collision of carriages and hidden dangers on premises (in which, I note, contracts and proprietary rights had a role to play) and were "far removed from the doctrine he enunciates" but despite this, the passage had been "used as a tabula in naufragio for many litigants struggling in the seas of adverse authority".[11] As law students know from the doctrine of tacking in mortgage cases, a tabula in naufragio is a plank in a shipwreck to cling to, so a third or later mortgagee can tack their mortgage to an earlier mortgage to take priority over intervening mortgagees in the shipwreck of the bankruptcy or insolvency. It is apparent that Lord Buckmaster was relieved to record that in Heaven v Pender, Cotton and Bowen LLJ refused to endorse the larger principle which Brett MR had enunciated.

His Lordship referred to Le Lievre v Gould in which Lord Esher asked:

But can the plaintiffs rely upon negligence in the absence of fraud? The question of liability for negligence cannot arise at all until it is established that the man who has been negligent owed some duty to the person who seeks to make him liable for his negligence. What duty is there when there is no relation between the parties by contract. A man is entitled to be as negligent as he pleases towards the whole world if he owes no duty to them.[12]

He referred also to Earl v Lubbock in which a driver was injured when the wheel fell off his van and failed in his claim for damages from the person who was meant to maintain the van. Mathew LJ, in rejecting the claim, had said that:

It is impossible to accept such a wide proposition, and, indeed, it is difficult to see how, if it were the law, trade could be carried on. No prudent man would contract to make or repair what the employer intended to permit others to use in the way of his trade.[13]

Lord Buckmaster referred to[14] Bates v Batey & Co Ltd[15] in which another bottle of ginger beer exploded as a result of an unknown but reasonably discoverable defect in the bottle and in which the plaintiff had failed.

His Lordship expressed the view that the case of George v Skivington and the dicta in Heaven v Pender should be "buried so securely that their perturbed spirits shall no longer vex the law".[16] He then referred with express approval to Mullen v Barr which was identical to the case at hand but for the fact that the offending animal in the dark bottle was a mouse and not a snail and in which Lord Anderson said that:

In a case like the present, where the goods of the defenders are widely distributed throughout Scotland, it would seem little short of outrageous to make them responsible to members of the public for the condition of the contents of every bottle which issues from their works. It is obvious that, if such responsibility attached to the defenders, they might be called on to meet claims of damages which they could not possibly investigate or answer.[17]

Lord Buckmaster, accordingly, would have dismissed the appeal.

From the perspective of 90 years later, this all seems distinctly odd. How can a manufacturer not be liable for injury to those who use the manufacturer's products exactly as the manufacturer intended? From the perspective of 1932, it is Lord Atkin's reasoning which was revolutionary despite the fact that (which itself seems odd today) a critical fact was the bottle being dark so the plaintiff had no chance of seeing the snail.

What is so revolutionary about Lord Atkin's reasoning?

1 He recognised that the Court was dealing with a fundamental issue of general principle, not just a case to be decided on and confined to its own facts. He said:

I do not think a more important problem has occupied your Lordships in your judicial capacity: important both because of its bearing on public health and because of the practical test which it applies to the system under which it arises.[18]

2 He recognised that the common law method of reasoning, in which principles are derived from cases decided on their particular facts, had led to the identification of duties of care by reference to specific classes of facts, without any unifying underlying commonality having been identified even though, logically, such an underlying commonality must be capable of identification.[19]

3 He recognised that the tendency of common law methods of reasoning to the atomisation of recognised duties of care was a weakness, but the alternative, of trying to identify "a complete logical definition of the general principle" was itself fraught with the risks of essentials being omitted and the introduction of non-essentials.[20]

4 He recognised that the originating source of liability in tort involved various shared moral imperatives – that a person who injures another has done wrong, that the wrong should be recognised to both educate and warn the wrongdoer and others and restore the dignity of the person injured, that the person injured should be restored as far as possible to their former circumstances.[21]

5 He acknowledged that there is a difference between moral wrongs and legal wrongs, saying that:

acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy.[22]

Lord Atkin then said these famous words:

The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.[23]

We know this passage so well that its power to surprise is lost. But it is revolutionary. Just think about it – why on earth is he mentioning the rule that "you are to love your neighbour". What is he talking about and how can it be relevant? The plaintiff was not the neighbour of the defendant. She was just the consumer of a bottle of ginger beer the defendant had made.

The source of the rule is the Book of Leviticus in the Old Testament. In Leviticus, God directs Moses to speak to the entire assembly of Israel to obey certain laws. Some of the laws are timeless, but in others we can see an immediate social and historical context. For example, the laws "do not steal" and "do not lie" sit along with "do not hold back the wages of a hired worker overnight" and "do not use dishonest standards when measuring length, weight or quantity". I think we can assume from this that in Israel in around the 7^th century BCE when the Book of Leviticus was apparently written, there were the same kinds of unscrupulous employers and dodgy retailers.

The Lord also directed Moses:

• Do not do anything that endangers your neighbour's life;
• Do not seek revenge or bear a grudge against anyone among your people, but love your neighbour as yourself.

The Lord further directed Moses:

• When a foreigner resides among you in your land, do not mistreat them. The foreigner residing among you must be treated as your native-born. Love them as yourself, for you were foreigners in Egypt.

Lord Atkin is far too clever to say in his judgment that God directed us to love our neighbour as we love ourselves so a person who drank ginger beer with a decomposing snail in it should be able to get damages from the ginger beer maker. Put that way, it all sounds a bit ridiculous. But in his search for the highest authority he can find to support the principle he is about to enunciate, we can infer that Lord Atkin knew very well that he was calling in aid the word of God. We can also infer that Lord Atkin knew that he did not have to mention God at all. His intended audience, the common law world, had an inherited consciousness based on Judaeo-Christian traditions that knew that it was a fundamental moral imperative to love your neighbour as you loved yourself.

And here we come to the great value of compassion. Everyone knows that there are times when we do not love our neighbours as we love ourselves. We intend and do harm to our neighbours, not infrequently. No doubt this is why in the 7^th century BCE, when the Book of Leviticus is said to have been written, people had to be directed not to steal, not to lie, not to fiddle their weights and measures, not to rip off their employees, and to love their neighbours – because like all humans they repeatedly did the opposite of what they (mostly) knew to be right. The key is in the terms of the law – we must not just love our neighbour, but we must love our neighbour as we love ourselves. Psychologists and philosophers spend a lot of time working out the difference between the human impulses of empathy and compassion. The difference is that empathy involves being able to feel as another feels. Compassion is feeling as another feels and wanting to help or care for that other person. This difference is why philosophers identify the human impulse to compassion as the great moral engine of human action. We can share in each other's experiences of joy or suffering by exercises of empathy, but it is compassion that drives us to try to help alleviate another's suffering.

In asking who in law is our neighbour, who is the person that the law says we must love as we love ourselves, with its inherent corollary that we must not harm that person, Lord Atkin is calling in aid the fundamental ideas of what it is to be human underlying the development of the common law as a whole to found his principle. In law, as we know, our neighbour is:

…persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.

So our neighbour is not the person who lives next door. It is the people we should reasonably have had in mind as potentially harmed by our actions before we act. By this means, the concept of spatial proximity inherent in being a neighbour is transformed into a relational proximity, which is purely conceptual – it exists or (more to the point, should exist) in the mind of the person whose actions involve the risk of harm to others.

Lord Atkin rejected any concern about the potential impact on trade from this new conception of relational proximity. He said:

There will no doubt arise cases where it will be difficult to determine whether the contemplated relationship is so close that the duty arises. But in the class of case now before the Court I cannot conceive any difficulty to arise.

…

I do not think so ill of our jurisprudence as to suppose that its principles are so remote from the ordinary needs of civilized society and the ordinary claims it makes upon its members as to deny a legal remedy where there is so obviously a social wrong.[24]

Lord Tomlin agreed with Lord Buckmaster. Lord Thankerton and Lord Macmillan agreed with Lord Atkin. By a 3:2 majority, what is now orthodox but was then revolutionary made its way into the common law.

The full name of the case, I note, is not Donoghue v Stevenson. It is M'Alister (or Donoghue) (Pauper) v Stevenson. In the United Kingdom at the time a person was not just "poor", they were a "pauper".

The UK had not yet experienced the enormous social and economic upheaval of the Second World War where everyone was on the front line due to air power and the subsequent introduction of a system of social welfare. To obtain a lawyer and access to the Courts for free, Mrs Donoghue had to petition the Court to declare her to be a pauper. She had to expose her poverty and destitution to public knowledge and accept that designation in the law books in perpetuity to obtain access to justice.

But Mrs Donoghue obtained a lawyer willing to act for free. And she ultimately found her way to Lord Atkin. And Lord Atkin was able to create a unified principle explaining the legal duty each of us owes our fellow humans, a principle based on one of the most powerful ideas of what it is to be human – that we experience suffering and understand and wish to alleviate the suffering of others, that we are capable of compassion for other beings.

I will discuss one other case in which the value of compassion played a central role. It is Mabo (No 2).[25] For me it is easy to forget that it is three decades since Mabo (No 2) was decided. To you, Mabo (No 2) represents orthodoxy. In 1992, however, it was revolutionary.

The basic premise of the judgment, that Crown title is subject to the rights and interests of the Indigenous peoples of Australia as recognised by the common law, is now as well-known to lawyers in Australia as Lord Atkin's neighbour principle. Under the common law as it stood, Australia had been colonised by England and the land of the Meriam people had thereafter been annexed by the Crown and incorporated into the State of Queensland. As colonisers of land said to be terra nullius (nobody's land), English law meant that the Crown could do so and thereby lawfully acquired absolute title. Justice Brennan explained that this doctrine had been repeatedly applied in the past. His Honour said that if this was the law it was unjust and had to be questioned.[26] He explained the principles within which this process of questioning was legally permissible. Accordingly:

• the Court was not free to adopt rules that accord with contemporary notions of justice and human rights if their adoption would fracture the skeleton of principle which gives the body of our law its shape and internal consistency;[27]
• the fact that the common law of Australia had been entirely free from Imperial control since 1986 was relevant – it meant that Australian courts were no longer bound by English precedents;[28]
• since 1986 the High Court alone had ultimate responsibility of declaring the law of the nation;[29]
• while matters forming part of the "skeleton of principle which gives the body of our law its shape and internal consistency" could not be identified "a priori", "no case can command unquestioning adherence if the rule it expresses seriously offends the values of justice and human rights (especially equality before the law) which are aspirations of the contemporary Australian legal system";[30] and
• if the High Court was to consider modifying the common law it had to "assess whether the particular rule is an essential doctrine of our legal system and whether, if the rule were to be overturned, the disturbance to be apprehended would be disproportionate to the benefit flowing from the overturning".[31]

Justice Brennan proceeded within this framework. As with the ginger beer bottle being dark and the decomposing snail dropping into the glass after Mrs Donoghue had drunk most of it in Donoghue v Stevenson, the facts helped. So too did exposing the historical basis of the doctrine of terra nullius and its expansion to suit the interests of an expanding British Empire. Justice Brennan explained how the doctrine of terra nullius expanded from one applying to uninhabited lands claimed by the British Crown to inhabited lands claimed by the British Crown where, in the eyes of Victorian England, the inhabitants were "barbarous".[32] "Barbarous" peoples were those the British considered to not be "settled" people living under "settled" laws. The problem was that when the Crown annexed the Meriam People's land, they were indisputably a society settled on their land undertaking the very activities that 19^th century British law considered distinguished the condition of civilisation from the condition of barbarousness – gardening.[33]

For 19^th century British jurisprudence, if you gardened like an Englishman, if you tilled the soil in the way societies which had undergone the agricultural revolution did, you were settled. In that event, British law applied only if your country was conquered by, or ceded to, Britain as part of its imperialist expansion program. But if you engaged in a different form of gardening, typical of hunter-gatherer and nomadic or semi-nomadic societies, you were not settled. Your land was taken to be uninhabited and, on British colonisation, the land became subject to British law including the Crown's ownership of all land. Whatever they were, from this perspective, hunter-gatherer and nomadic or semi-nomadic societies, were not within the conception of a "neighbour" in British (or European) minds. They were not people we should love as we love ourselves.

Today, you do not need to be an anthropologist to recognise the arbitrary and racist ideas about what being human means that underlie this legal theory. Justice Brennan called out this piece of preposterousness. He said:

• "It is one thing for our contemporary law to accept that the laws of England, so far as applicable, became the laws of New South Wales and of the other Australian colonies. It is another thing for our contemporary law to accept that, when the common law of England became the common law of the several colonies, the theory which was advanced to support the introduction of the common law of England accords with our present knowledge and appreciation of the facts";[34]
•  
• "The facts as we know them today do not fit the "absence of law" or "barbarian" theory underpinning the colonial reception of the common law of England. That being so, there is no warrant for applying in these times rules of the English common law which were the product of that theory. It would be a curious doctrine to propound today that, when the benefit of the common law was first extended to Her Majesty's indigenous subjects in the Antipodes, its first fruits were to strip them of their right to occupy their ancestral lands. Yet the supposedly barbarian nature of indigenous people provided the common law of England with the justification for denying them their traditional rights and interests in land";[35]
• "The theory that the indigenous inhabitants of a "settled" colony had no proprietary interest in the land …depended on a discriminatory denigration of indigenous inhabitants, their social organization and customs. As the basis of the theory is false in fact and unacceptable in our society, there is a choice of legal principle to be made in the present case";[36]
• "If it were permissible in past centuries to keep the common law in step with international law, it is imperative in today's world that the common law should neither be nor be seen to be frozen in an age of racial discrimination";[37] and
• "The fiction by which the rights and interests of indigenous inhabitants in land were treated as non-existent was justified by a policy which has no place in the contemporary law of this country".[38]

The human impulse to compassion – to see and alleviate suffering – called for action. But Brennan J recognised that no change could be made to the common law if to do so "were to fracture a skeletal principle of our legal system".[39] The beneficial title of the Crown did not depend only on the fiction of terra nullius, so his Honour had to examine the legal underpinning of the Crown's title by reference to a clear skeletal principle of the common law – the doctrine of tenure (that all titles are derived from the Crown).[40]

The ultimate synthesis that Brennan J reached was that the doctrine of tenure operated subject to the rights and interests of the indigenous inhabitants as and if recognised by the common law.[41] By this synthesis the skeletal principles of the common law remained intact, adjusted to accommodate the abolition of the unjust fiction that Australia was uninhabited on colonisation.

On the facts and law as identified, Brennan J proposed the famous declaration, made by the Court, that the "Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment of the island of Mer".[42]

Mabo (No 2) remains one of the High Court's most controversial decisions. At the time many responses were fantastical, positing the potential loss of title to suburban backyards across the country. The content of those responses can be put to one side – they never reflected the reality that the Indigenous rights and interests which Mabo (No 2) contemplated continued were those that the common law recognised. To be recognised by the common law, such rights had to exist in the sense that the traditional laws and customs from which the rights and interests sprang had to have continued substantially uninterrupted from the time of Crown sovereignty and were vulnerable to prior extinguishment by inconsistent Crown grants. Those, and other, contemporary and current responses to Mabo (No 2) expose different but legitimate ideas about how far a court can go to reflect contemporary ideas about what being human is and about what justice requires in response.

The world as we knew it did not end with Mabo (No 2). The passage of the Native Title Act 1993 (Cth), with its profound statement recognising the human dignity of and the need for justice for Aboriginal and Torres Strait Islander Peoples for that dignity to be vindicated, continues to operate with deeply imperfect substantive provisions. The overall effect of the legislative embodiment of Mabo (No 2) is one in which, with extraordinary hard work, extraordinary outcomes can be achieved. But many outcomes are far less than extraordinary. And they all come at a price including the very real potential (and actuality) of further denigration, re-traumatisation and sheer psychological exhaustion of Australia's First Nations Peoples.

The achievements and bitter disappointments of the operation of the Native Title legislation since 1993 do not undermine the intellectual, moral and legal power of the High Court's judgment in Mabo (No 2). In common with the approach of Lord Atkin in Donoghue v Stevenson, the search for principle in Mabo (No 2) resulting from the compassionate impulse drove moral action, a part of which includes the pursuit of justice. The reasoning of the judges involved, Lord Atkin and Justice Brennan in particular, was fundamentally constitutive. The judges declared principles which enabled us to think in new ways and develop new norms to regulate conduct. Lord Atkin made the mental state of the person whose action might potentially harm others the focus of the neighbour principle. The High Court made the rights and interests of Indigenous Australians in connection with land capable of recognition by the common law.

In the context of the development of the common law, the impulse to compassion operates in a principled context, the object being not merely justice, but justice according to law. As humans have meta-consciousness, so the law has meta-principles, regulating how the law may develop and thereby how the pursuit of justice according to law in response to the compassionate impulse can be implemented. The decisions in Donoghue v Stevenson and Mabo (No 2) expose the way in which judges grapple with the ongoing need to do justice according to law.