Duty of Care

· ‘Damage is the gist of the action’
· Duties of care are imposed by law with respect to certain kinds of loss.
· The critical idea is that duty and harm are inextricably linked.

§ Physical harm
o A duty of care is straightforwardly owed in relation to physical injury.
o ss 3 & 5A CLA for a general negligence claim.
o If physical harm = death? Common law – action personalis moritur cum persona, law reform (miscellaneous provisions) Act 1941 (WA) s 4.
o Victims death = injury to his/her relatives; Baker v Bolton (1801) 170 ER 103; Fatal Accidents Act 1959 (WA), s 6(1).

O Similarly, a duty of care is owed in relation to physical injuries
o ss 3 & 5A CLA for a general negligence claim.

O A duty of care is owed in relation to economic losses (e.g. loss of earnings, medical bills, repair costs) that are the result of physical injury or property loss/injury being sustained.
o ss 3 & 5A CLA for a general negligence claim.

O More than mere ‘grief and sorrow’ – Deane J in Jaensch v Coffey (1984) 155 CLR 549.
o s 5Q CLA, mental harm = the impairment of a person’s mental condition, and in s S(1) CLA ‘recognised psychiatric illness’.
o If mental harm is suffered, then special riles apply when establishing whether a duty is owed.
and pure economic loss.

· A duty of care is an obligation imposed on a person to take reasonable care to ensure that they do not, through their conduct, cause another person to suffer.
· The common law has already established that in certain relationships one party will owe another a duty of care. For example;
o Road users
o Doctor / patient
o Parent/ child
o Manufacturer / consumer
o Employer / employee
o Parties to a contract
o Bailee / bailor
· Therefore determining whether a duty is owed is simply a question of applying the earlier precedent.

· Outside the established categories, you need to apply the common law tests in order to determine whether the defendant owed the plaintiff a duty of care.
· Small minority of cases concern novel duties
· The general test for determining when a defendant will owe a duty of care to a plaintiff was proposed by Lord Akin in Donoghue v Stevenson; the approach known as the ‘neighbour principle’ was set in this case. The neighbour principle can be described as ‘… the rule that you are to love your neighbour becomes in law, you must not injure your neighbour … you must take reasonable care to avoid acts or omissions which you can reasonable foresee would be likely to injure your neighbour. Who is your neighbour? … 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 acts or omissions which are called in question’ Lord Atkin (at 580).

· A general test that may be adopted by the high court is the approach previously recommended by Justice Brennan in Sutherland Shire Council v Heyman (1985) CLR 424 at 481 where he stated that ‘the law should develop novel categories of negligence incrementally and by analogy with established categories’.

· The legal position on the correct approach to adopt in determining whether a novel category of duty should be established is currently uncertain and is an issue that awaits clarification from the High Court.
· There is no specific test for guiding a court as to whether a duty of care should be established in a novel situation (when cases don’t fall into accepted categories), however the concept of reasonable foreseeability will normally play a key role. A court will also consider any policy factors that may be relevant in determining whether it is appropriate to establish a novel duty of care.

· This concept is based on what the defendant considered to be the reasonably foreseeable consequences of their actions but on the views of a reasonable person in the position of the defendant.
· The appropriate approach to determining the scope of reasonable foreseeability was considered in Chapman v Hearse (1961) 106 CLR 112; ‘ it is not necessary for the plaintiff to show that the precise manner in which his injuries were sustained was reasonably foreseeable; it is sufficient if it appears that injury to a class of persons of which he was one might reasonably have been foreseen as a consequence’.

Proximity was the test for a long time, but it was rejected by the high courts in Sullivan.

· This approach was pioneered by Brennan J in Sutherland Shire Council (1985) 157 CLR 424. The basic premise was to ask whether the relationship between the defendant and the plaintiff is analogous to any pervious established category of duty. Only is YES, can the law create a new category. Brennan wanted to develop new categories of negligence incrementally and by analogy with established categories.

· Notably supported by Gummow J: Perre v Apand (1999) 198 CLR 180.
· This approach requires the judge to examine the facts of the case before it and to determine what the salient features are. These are features that, if present, indicate a duty should be owed or not owed. When combined, these features may indicate that a duty is owed.
· These salient features have been determinative in previous cases, and so you can point to those cases as confirming that these features are indicative of a duty being owed/not owed.
· There is nothing to prevent a judge from looking at the facts of the case before him and deciding that a particular fact is salient, even though it is unusual and so has not arisen for identification in previous cases.

§ The degree of control exercised by the defendant over the situation of both themselves and the plaintiff (the stronger the control, the more likely a duty is owed): Perre v Apand (1999) 198 CLR 180.
§ The vulnerability of the plaintiff (the greater the vulnerability the more likely a duty is owed): Perre v Apand (1999) 198 CLR 180.
§ The defendant’s knowledge of the plaintiff and their circumstances (the more knowledge a defendant has, the more likely a duty is owed):Perre v Apand (1999) 198 CLR 180.
§ Physical proximity (the more physically close, the more likely a duty is owed): Perre v Apand (1999) 198 CLR 180.
§ Creates a risk of indeterminable liability (if yes, then strongly suggests a duty should not be owed): Perre v Apand (1999) 198 CLR 180.
§ The defendant owes another duty of care that may conflict with a duty owed to the plaintiff (the more likely the conflict, the more likely a duty is owed): Sullivan v Moody (2001) 207 CLR 562.

Combined incremental/salient features appraoch
A. The cautious (let’s argue only by reference to principles & policies established in analogous categories of duty) incremental approach and
B. The flexible (let’s look at the facts and see which ones are salient, with some reference to previous cases, but allowing for new facts to surprise us) salient features approach.
· Basically, you apply both approaches. So:
1. Look for analogous established categories of duty, consider the prinmciples and policies relevant in those cases, and
2. Consider any salient facts and the implications of these facts.