Salient features assist courts in determining whether a duty of care existed between a plaintiff and defendant PDF

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Short description on the role of salient features in the Australian Legal System in relation to tort law....

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Salient features assist courts in determining whether a duty of care existed between a plaintiff and defendant. In order to determine whether a duty of care exists, Australian courts consider whether the plaintiff belongs to a class of people to whom a duty of care is owed, and if this is not the case, the plaintiff must prove that it was reasonably foreseeable that they could be harmed by the defendant’s actions. If this is the case, courts consider salient factors such as the “foreseeability of harm, any potential indeterminacy of liability and the nature of the harm alleged”1 to determine whether a duty of care existed. This also protects defendants in a civil dispute by upholding the idea that a duty of care is unlikely to exist between two parties between whom there is no connection.

1 Carolyn Sappideen, Prue Vines and Penelope Watson, Torts: Commentary and Materials (Thomson Reuters (Professional) Australia Limited, 12th ed, 2016) 219....