Dear Jason;

Here is the way I try to explain it to my students.

-McHugh J in Perre v Apand Pty Ltd [1999] HCA 36 suggests the “incremental” approach to determination of a new duty, at para [94]:

In my view, given the needs of practitioners and trial judges, the most helpful approach to the duty problem is first to ascertain whether the case comes within an established category.  If the answer is in the negative, the next question is, was the harm which the plaintiff suffered a reasonably foreseeable result of the defendant’s acts or omissions? A negative answer will result in a finding of no duty.  But a positive answer invites further inquiry and an examination of analogous cases where the courts have held that a duty does or does not exist .  The law should be developed incrementally by reference to the reasons why the material facts in analogous cases did or did not found a duty and by reference to the few principles of general application that can be found in the duty cases.

-I then note that the final stage these days is often said to involve consideration of the ‘salient features’ of the case as described in Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258 per Allsop P at [100]-[103].

• This analysis has been referred to regularly as an authoritative summary of the duty of care question in new cases, and so far the High Court has not said it will change its approach! (For a recent mention of the test, see Mallonland Pty Ltd & Anor v Advanta Seeds Pty Ltd [2023] QCA 24 (28 February 2023).) It is worth noting that the High Court itself has not had occasion to officially approve the approach. But given its continuing use by trial judges and state appellate courts, it is the one we should apply. Note also that the Mallonland case has gone on appeal, so we may get some comments in that judgement on the approach to duty of care. (See Mallonland Pty Ltd ACN 051 136 291 & Anor v Advanta Seeds Pty Ltd ACN 010 933 061 [2024] HCATrans 12 (6 March 2024) for the transcript of the hearing).

• Since he was the author of the passage usually cited, it is interested to see the comments of Allsop CJ (after his Honour moved to the Federal Court), in Minister for the Environment v Sharma [2022] FCAFC 35:

[206] The search for a principled approach to the imposition of a duty to take reasonable care for others and their interests has not led in Australia to any analytical formula capable of mechanical application: see Graham Barclay Oysters 211 CLR at 622–629 [229]–[244] (Kirby J).  In part, that is because of the need to draw out from the detail and context of human and societal relationships a legal duty that requires the exercise of reasonable care in some fashion.  Taxonomy and definition play their part, but ultimately the law of negligence concerns itself with the protection of certain human interests against certain types of human (mis)conduct where it is reasonable and in accordance with standards of the day to impose a duty that may lead to personal responsibility for compensation to a person harmed by the (mis)conduct.  The notion of neighbourhood taken from Donoghue v Stevenson [1932] AC 562 at 580 is built on the human and societal relationship between the parties: Mutual Life & Citizens’ Assurance Co Ltd v Evatt [1968] HCA 74; 122 CLR 556 at 566.

[207] The exposition of the proper approach in Australia in the many High Court cases … and discussed in Stavar 75 NSWLR at 674–676 [93]–[102] and in many other intermediate courts of appeal recognises an approach necessitating a close examination, not only of all the facts attending the relationship between the parties, but also the legal relationship in which they are situated, together with legal policy and principle drawn from analogous or cognate cases.  The relationship is not one built by the salient features.  Rather, the salient features play their part in considering the relationship and the question of the appropriateness of the imposition of a legal duty of care as the necessary foundation for the potential personal liability of the person to the injured party for damages as a consequence of the impugned act or omission in question.

Regards

Neil