Q salient features Australia PDF

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Q- Critically discuss the following statement: “The “salient features” approach developed by the Australian Courts for identifying a duty of care in “novel” negligence situations is preferable to the UK Courts’ “fair just and reasonable” approach, because it provides the right balance between establishing the relevant principles and providing flexibility for their application to specific fact situations” . The question of when a duty of care in the tort of negligence is owed by one person to another is a question about relationships and responsibility as recognised by the law. Litigants need certainty in the law but the law also needs to be flexible enough to change in the interests of justice. In negligence, the duty of care there is a the battle between flexibility and predictability which judicial decision making struggles and it is comes up each time novel categories or hard cases are decided. The UK and Australia have taken different approaches and the choice of test used for the duty of care is fundamental to legal outcomes in each country. In the UK The Caparo Case – Just Approach What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of "proximity" or "neighbourhood" and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other.’ Caparo Industries Plc v Dickman [1990] 2 AC 605 (Lord Bridge of Harwick) the UK aaproach became based on Foreseeability: Damage to the plaintiff was reasonably foreseeable; Proximity: Second, the relationship between the plaintiff and the defendant is sufficiently proximate; Justice: Thirdly, it must be ‘fair, just and reasonable’ to impose a duty of care in the particular circumstances of the case But rejected in Australia by the High Court in Sullivan V Moody McHugh J, in Perre v Apand [1999] HCA 36; (1999) 164 ALR 606 at 629 stated what is needed is “a conceptual framework that will promote predictability and continuity and at the same time facilitate change when it is needed”. The High Court show that developing such a conceptual framework is difficult to achieve and is still evolving.

The history of negligence law, begins with the development of the concept of the duty of care. Donoghue v Stevenson established the neighbourhood principle, which was seen as a big change from incrementalism approach which was preferred in Australia ‘it is preferable, in my view, that the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable ‘considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed’.’Sutherland Shire Council v Heyman (1985) 157 CLR 424 (Brennan J).

The search for underlying rule continued the proximity-as-principle could have gone further towards dealing with the problem of predictability, if the court had been willing to articulate more clearly what its view of the relationship between legal and moral responsibility was expressed Donoghue v Stevenson, at 580, per Lord Atkin. He noted the basis of the rule as “a general public sentiment of moral wrongdoing for which the offender must pay” and went on, “[t]he 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…The answer seems to be – persons who are so closely and directly affected by my act…”. Proximity-asprinciple was founded, as the neighbourhood principle was, on a moral idea. 1 The answer may be that it is necessary for the tests to swing between the emphasis on the principle and the emphasis on the category so that a sense of coherence is maintained over time - a purely principled approach can lead to a sense of uncertainty or lack of concreteness and a purely categorical approach will lead to a sense of rigidity and arbitrariness.2 But, as the judges themselves acknowledge, at present we seem to have the worst of both worlds. Narrow forms of incrementalism may seem arbitrary and unreal because the choice of category is itself arbitrary. Some kind of framework is necessary, and the judges need to agree on what it is.3 The court in Sullivan and Moody were the medical staff under a duty of care towards the fathers? they recognised that a D may owe multiple duties but they can’t be irreconcilable. The statutory regime was to protect childrenThe interests of the children were paramount. Professional or statutory responsibilities to investigate and report applied. The Australian incremental approach has a set of salient features where foreseeability is essential as stated in ‘What is important to consider is whether a reasonable man might foresee, as the consequence of such a collision, the attendance on the roadway, at some risk to themselves, of persons fulfilling a moral and social duty to render aid to those incapacitated or otherwise injured.’ Chapman v Hearse (1961) 106 CLR 112. But the test also includes considerations of –ProximityVulnerability-Reliance-Autonomy-Control--Coherence & Consistency-Indeterminacy -Statutory Obligations Implications

In Minister Administering Environmental Planning and Assessment Act 1979 v San Sebastian Pty Ltd [1983] 2 NSWLR 268 - Foreseeability is considered relevant to each element in negligence but then the inquiry becomes more specific.

The Australian test for the duty of care may still lack predictability. The incrementalism applied – that is, reliance and purpose, professional relationships, 1 Vines, Prue --- "The Needle in the Haystack: Principle in the Duty of Care in Negligence" [2000] UNSWLawJl 25; (2000) 23(2) UNSW Law Journal 35

2 ibid 3 ibid

the elements of control and vulnerability.4 Policy factors are clearly important – but again, they are most likely to be determined by the category and therefore to fit into a form of incrementalism.5 There are policy concerns such as indeterminacy: concerned that a duty would create ‘liability in an indeterminate amount for an indeterminate time to an indeterminate class.’ Caltex Oil ( Australia) Pty Ltd V The Dredge Willemstad (1976) 136 CLR 529,Sullivan V Moody. Similarly with coherence issue in Harriton V Stephens (2006) 226 CLR 52;Joint Illegality - Millar v Millar (2011) 242 CLR 446); Self-Induced Intoxication Cal No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390. However, although they might all be called incrementalist, there is no agreement on a framework which would assist with predictability. 6 The court is looking for a framework which can reconceptualise the duty of care but still seems to be evolving.

4 ibid 5 ibid 6 ibid...