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New cases can arise where the particular situation has not previously been recognised as giving rise to a duty of care. In such cases, the courts use a 'multi-faceted' approach, weighing up various factors which may point to the existence of a duty of care. The factors that a court will take into account include the following:
- Considerations of policy and fairness
- The extent to which the harm was foreseeable in the circumstances
- The potential number of similar cases if the duty of care is recognised
- The likelihood of interfering with another existing area of law
- The likelihood of conflicting with a defendant's existing statutory duty
- Whether to recognise a duty of care would impose an unreasonable commercial burden on the defendant
- The degree of knowledge the defendant had about the risk of harm
- Whether the wrongdoer was in a position of control and the person harmed in a position of vulnerability
The application of such factors is illustrated in the following cases:
Sullivan v Moody (2001) 207 CLR 562.
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540.
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