By Dr Kylie Burns
Deputy Head of Learning and Teaching
When judges decide cases they typically are thought to strictly apply legal principles to ‘facts’ which are presented as evidence in a hearing or trial. For example, how fast was a car going before a collision? What did the defendant do when they became aware of a risk? These kind of facts are known as adjudicative facts- they are about the parties to a matter and the direct circumstances that arose: the who, the what, the why and where. However, in many areas of the law, as part of decision-making judges are required to make assumptions about the more general nature of the world, society, and institutional and human behaviour. These assumptions can be called ‘social facts’. In order to determine what a reasonable person would do in a negligence case, a judge needs to make assumptions about how ‘normal’ ‘reasonable’ humans might behave in a given situation. For example, how would a reasonable person have understood a warning sign? In a criminal, domestic violence and family law cases, it might be relevant to understand matters such as the nature and impact of domestic violence on women and children, or how victims of sexual assault may behave following an assault. In commercial cases, broader assumptions might need to be made about the general nature of commercial practices in a particular industry.
Some of these social facts might be the subject of oral or written expert evidence in a trial or hearing. Sometimes, a judge can take ‘judicial notice’ of a social fact that is notorious, clearly established or can be proved by a readily available authoritative source or document. For example, a judge might take judicial notice that it is generally hot in Queensland in Summer. Judges may refer to bench books which have been developed to provide background material on certain matters. For example, a national bench book for Australian judicial officers has been developed in relation to domestic and family violence. Judicial officers often undergo training and professional development which may raise awareness of social facts in relation to issues such as gender, cultural awareness and social diversity. Sometimes, judges may refer to empirical or other material which they have self –sourced. This practice is perhaps more common in the United States than in Australia and the United Kingdom. Judicial self-sourcing of empirical information may be helpful for a judge in their decision-making and is becoming relatively easy in the age of the internet. However, in Australia this practice may breach the doctrine of judicial notice particularly where the empirical material is potentially controversial and where notice has not been given to parties. Judicial use of self-sourced empirical material can also raise issues as to whether judges are properly equipped and educated to locate, evaluate and apply empirical or scientific evidence without expert assistance.
In many cases, a judge may draw on their own general knowledge or ‘common sense’ about social facts in the absence of any material provided by the parties. In some cases, judicial reference to social facts based on common sense may cause little concern and be a rational judicial approach to a ‘gap’ in information. For example, an assumption about the changing nature of the relationship between doctors and patients might be well accepted and in accord with general expectations of the community and the medical profession and may accord with available empirical evidence. However, there are some dangers in over-reliance on judicial intuition, general knowledge and common sense. Common sense may be the pathway to cognitive bias and stereotyping in the law; a judge’s intuition or general knowledge may simply be wrong or inconsistent with available empirical evidence; diverse perspectives may be precluded from judicial reasoning particularly where the judiciary itself is not diverse; there may be multiple common sense views; and judges may over-value common sense or speculation in preference to better quality empirical evidence.
What should we do then when judges need information about how the world works? This is a problem that will only become more pressing given rapid changes in technology and social complexity. We must accept that judicial intuition and experience will remain key sources of social fact assumptions. Judges are human. Just as these sources of information are inherent in human decision-making, so they will remain inherent in judicial decision-making. It is impossible to prove all social facts, and many judicial assumptions of common sense may accord with community expectations. There are also institutional factors which militate against empirical proof of all facts- such as time, cost, and the nature of the adversarial system. Nevertheless, the issues that can arise from incorrect, incomplete or biased ‘common sense’ facts and the potential impact of ‘unconscious’ judicial cognitive bias give cause for concern. We need to more carefully evaluate how judges construct and use social facts and investigate when and how empirical information could be usefully considered by courts in ways that inform accurate decision-making and which do not cause injustice to parties. Our existing framework for judicial reception and use of social facts is outdated.
K Burns ‘In this Day and Age: Social Facts Common Sense and Cognition in Tort Law Judging in the United Kingdom’ (2018) 45(2) Journal of Law and Society 226 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3189159
Kylie Burns ‘Judges, ‘Common Sense’ and Judicial Cognition’ (2016) 25 (3) Griffith Law Review 319 https://www.tandfonline.com/doi/abs/10.1080/10383441.2016.1259536
Montgomery v Lanarkshire Health Board  UKSC 11