The policy/operational dichotomy in intra-state tort liability: an example of the ever-continuing transformation of the common law.

AuthorWoodfield, Nicholas W.

    England and several States that were once part of its empire (including the United States, Canada, Australia, and New Zealand) have, in the twentieth century, legislatively waived their common law immunity to certain civil actions filed by citizens who are seeking to recover damages caused by the negligence of the State and/or its servants.(1) This voluntary partial waiver of sovereign immunity now subjects these States to potential liability in an effort to provide the States' citizens with redress for previously unrecoverable damages. And while it was the intent of legal reformers to cause these States to be treated in their own courts in a manner that would be indistinguishable from the treatment accorded to any other party submitting to the jurisdiction of the courts, nevertheless it is crucial to note that certain public policy considerations continue to prevent the complete abandonment of this doctrinal immunity.

    Further, the ever-continuing judicial interpretation of the scope of the waiver immunity in the respective courts in these countries virtually guarantees that the delineation of the common law doctrinal defense will continue to evolve in an effort to better reflect the contemporary social, political, and economic values peculiar to each dynamic society. This is because each of the aforementioned countries is working toward an identical goal of securing for its citizens, by means of the application and transformation of their respective common law interpretations of the scope of the waiver, justice, which has been defined as being "a matter of the right outcome of the political system: the right distribution of goods, opportunities, and other resources."(2) Epitomizing the comparative interpretation of the scope of the waiver, a "policy/operational dichotomy" has been introduced in the respective bodies of common law interpreting the scope of the waiver of immunity in the United States, England, Canada, Australia, and New Zealand as each of the forgoing has attempted to distinguish which tort liability actions are justiciable pursuant to their respective waiver efforts and which are not. It is important to observe that all of the aforementioned States have also struggled with the same enigma that has plagued the application of the policy/operational dichotomy since the United States Supreme Court first articulated the delineation in Dalehite v. United States, i.e., the demarcation of where policy or discretionary considerations (and immunity) end and where operational activities (and tort liability) begin.(3)

    This article will analyze the common law origins of the defense of sovereign immunity in the legal systems of England, the United States, Canada, Australia and New Zealand, and it will recognize and address the common, recurring themes characterizing the waiver of immunity as evidenced in the policy/operational dichotomy. More importantly, it will demonstrate that the development of this distinction is an example of the ever-continuing evolution of the common law. Finally, a pragmatic mechanism aiding in the resolution of the policy/operational dilemma in all five of the aforelisted jurisdictions will be suggested and commented upon. The efficacy of this suggestion will justify the conclusion that a legal doctrine originating in a germinating body of common law will uniformly evolve toward the conceptual goal of justice in derivative legal systems regardless of its development in separate and distinct societies.(4)


    As the common law in England developed its own identity out of a meld of Roman law and German customs, the resulting body of laws reflected social, political and economic factors that comprise English societal history. And as England and the States sharing its common law heritage continued to develop and evolve, their bodies of laws have continued to develop with them by perpetually reflecting and incorporating the evolutions and influences inherent in the growth of each nation. Because the laws of each respective State are continually developing and evolving in an attempt to reflect and define the contemporary values and morals of their society in order to achieve a more perfect sense of justice as viewed from within each State, Oliver Wendall Holmes expounded his very Darwinian conclusion that in the landmark American jurisprudential writing, The Common Law:

    The truth is, that the law is always approaching, and never reaching, consistency. It is forever adopting new principles from life at one end, and it always retains old ones from history at the other, which have not yet been absorbed or sloughed off. It will become entirely consistent only when it ceases to grow.(5) Hence, as a society continues to evolve and develop, its common law will also continue to evolve and develop to reflect this dynamism.(6) "As institutions of the state, courts make authoritative decisions about certain matters presented to them. The social, political and economic environment influences, perhaps indirectly, the nature of these matters."(7) Combining with these ancillary societal factors, the shaping influence of legal precedent, as defined by the doctrine of stare decisis, in the common law throughout its history is unquestionable. However, the authority and scope of common law precedent has varied greatly in the different legal systems addressed,(8) and the continuing evolutionary nature of the common law has been the subject of debate. As early as the beginning of the seventeenth century, legal scholars actively debated whether common law precedent should continue to expand and evolve to encompass new fact and legal scenarios, or whether the body of laws existing at that time should be viewed as a form of optima regula, literally the "best rule" or the "highest rule," which, "after many successions of ages ... [had been] fined and refined" so as to form a complete referential body of legal authority from which all subsequent legal decisions might be conclusively decided.(9)

    The first dramatic confrontation between these two philosophies took place in the jurisprudential debate occurring in Calvin's Case, which determined the validity of a claim of a Scottish born individual to be allowed to inherit real property in England.(10) The former position was advocated by individuals such as Lord Ellesmere and Edwyn Sandys, who argued that, "new cases happen every day: no lawe euer was, or euer can be made, that can prouide remedie for all the future cases, or comprehend all circumstances of humane actions which judges are to determine."(11) In rebuttal, lawyers including Sir Edward Coke and Francis Bacon actively opposed the notion of any further evolution of the law, as Coke claimed that there was no need for new laws, as "the laws of England are so copius in this point"(12) that any legal questions might be decided based upon the law expounded in the then-existing precedent. Further, Bacon suggested that, if and when a matter of first impression arose, the courts should not "consult of a law to be made, but to declare the law already planted"(13) and thus should rely on the already existing legal rules to make their determination. Coke supported this when he espoused the position that the current law, "as optima regula -- was therefore given an unassailable and transcendental existence which is entirely removed from the actual workings of the judiciary."(14)

    Ellesmere and Sandys' argument that legal precedent must continue to develop in order to deal with new and unforeseen legal questions contributed to their victory in Calvin's Case.(15) However, the question next arises of why any given law on any well-considered issue, the parameters of which have been refined and resolved by courts over many years, must continue to evolve into new and different forms? The answer again lies in the evolution of society. Holmes noted that, "However much we may codify the law into a series of seemingly self-sufficient propositions, those propositions will be but a phase in a continuous growth."(16) This is true because, as Holmes observed, the law is always approaching, but never reaching consistency. Because there will always be gaps in the law, new situations, vagueness, and indeterminacy, the law will become entirely consistent only when it becomes fixed and ceases to grow.

    Accordingly, the interpretation of legal precedent must recognize that "law and legal text are not disengaged from the circumstances of `the time they were made.'"(17) In order to effectively correspond with and reflect the actual feelings and demands of the community, the courts' present-day interpretation of historical precedent must recognize and address the dynamic that exists between the rationales supported, the historical adoption and growth of the law, and the contemporary values and goals sought by the society and governed by the legal authority applying the precedent. If a contemporary legal authority fails in its application of precedent to recognize any dissimilarities between the parameters and goals of the justice, or public policy, sought in the current legal action and the rationale behind the historical application of the law, the resultant precedent runs the risk of diverging from the values and goals of justice sought by its society. This, in turn, leads to a loss of credibility in the legal systems that govern the society and risks creating "the greater evil of private retribution"(18) by people who, because the law has failed to provide them with a remedy for their injuries, have been caused to abandon their belief in, and thus their abiding respect for, the law.(19)

    Developments in tort law responsive to socio-economic changes in society are typified by the contemporary evolution of the defense of sovereign immunity, which reflects a refinement in the common law prompted by the transformation of societal values with respect to the rights of the individual...

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