Duty of Care in Australian Negligence Law: Tests and Categories

The first element of negligence

Negligence has four elements — duty, breach, causation and damage — and duty is the gateway. The question is not whether the defendant caused harm in fact, but whether the law recognised an obligation to take care to avoid it in the first place. Reasonable foreseeability of harm to a class of persons that includes the plaintiff is necessary to a duty, but it is never sufficient on its own.

Because foreseeability alone would extend liability almost without limit, the law uses categories and salient features to mark out where a duty actually arises. The neighbour principle that began with Donoghue v Stevenson is the historical root of this inquiry, but modern Australian law has moved well beyond a single formula.

Established categories where a duty is settled

• Driver and other road users.
• Employer and employee.
• Manufacturer and consumer — the modern descendant of the neighbour principle.
• Doctor and patient.
• Occupier and lawful entrant.
• School authority and pupil.
• Solicitor and client.

Novel cases: the salient-features approach

Where the relationship does not fit an established category, reasonable foreseeability is the starting point but never the answer. Courts weigh a non-exhaustive list of "salient features". The factors were developed in cases such as Caltex Oil, Perre v Apand and Graham Barclay Oysters v Ryan, and were drawn together into a frequently cited checklist by Allsop P in Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649. Several of the features — notably the plaintiff's autonomy and the need for coherence with other legal and statutory duties — come from Sullivan v Moody itself.

• The plaintiff's vulnerability — their inability to protect themselves from the consequences of the defendant's conduct.
• The defendant's knowledge that the conduct could harm the plaintiff, or an ascertainable class of persons.
• The degree of control the defendant had over the risk that caused the harm.
• Indeterminacy — whether a duty would expose the defendant to liability in an indeterminate amount, for an indeterminate time, to an indeterminate class.
• The plaintiff's autonomy, and the coherence of the proposed duty with other legal obligations and with policy.

Why Australia rejected proximity and the imported tests

In Sullivan v Moody the High Court held that neither "proximity", nor the Anns two-stage test, nor the English Caparo three-stage test provides a satisfactory universal framework for the existence of a duty in Australia. Those approaches were thought to mask the real, value-laden judgments involved. Sullivan did not invent a replacement formula: it held that foreseeability alone is not enough and that a novel duty turns on a close analysis of the particular relationship and its coherence with other legal and statutory duties. Established categories continue to govern the familiar relationships, while novel cases are worked out through the salient-features analysis.

Duty of care and the Civil Liability Acts

The existence of a duty of care remains, in its general formulation, a question of common law. The Civil Liability Acts enacted across most Australian jurisdictions after 2002 — for example the Civil Liability Act 2002 (NSW) — did not codify duty. They principally reshaped the standard of care and breach (such as s 5B of the NSW Act), causation, and the available defences. So whether a duty exists is still decided on the common-law principles above, even though how breach is judged is now partly statutory. The Acts do, however, overlay specific statutory rules in defined situations — for example public-authority liability, mental harm, professional standards (s 5O of the NSW Act), and obvious or inherent risks.

Key authorities

• Sullivan v Moody [2001] HCA 59

  High Court of Australia11 October 2001

  Sullivan v Moody (2001) 207 CLR 562 — rejected proximity and any single universal test (including the Anns two-stage and Caparo three-stage tests); held that foreseeability alone is insufficient and that a novel duty turns on a close analysis of the relationship and its coherence with other legal and statutory duties.

• Perre v Apand Pty Ltd [1999] HCA 36

  High Court of Australia12 August 1999

  Perre v Apand Pty Ltd (1999) 198 CLR 180 — the leading exposition of the salient-features approach, especially for pure economic loss; emphasised vulnerability, the defendant’s knowledge, and indeterminacy.

• Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54

  High Court of Australia5 December 2002

  Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 — applied the salient-features analysis to the liability of public authorities, stressing control over the risk.

• Caltex Oil (Australia) Pty Ltd v Dredge "Willemstad" [1976] HCA 65

  High Court of Australia9 December 1976

  Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” (1976) 136 CLR 529 — opened recovery for pure economic loss in negligence; the Justices gave separate reasons, but a recurring thread is that a duty may arise where the defendant knew or ought to have known that a specific, ascertainable plaintiff — not an indeterminate class — was likely to suffer loss.

• Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61

  High Court of Australia23 November 2000

  Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 — on the limits of any duty to prevent harm caused by the criminal acts of third parties.

• Wyong Shire Council v Shirt [1980] HCA 12

  High Court of Australia1 May 1980

  Wyong Shire Council v Shirt (1980) 146 CLR 40 — the foreseeability test at the breach / standard-of-care stage: a risk is foreseeable unless "far-fetched or fanciful" (Mason J). Cited for that threshold; note the Civil Liability Acts (e.g. s 5B(1) NSW, requiring a risk that is "not insignificant") have since modified the breach test.