First Principles of Business Law

The tort of Negligence

4.2. Establishing a duty situation or relationship

4.2.3. Cases that do not fall within a recognised duty situation or relationship

 

 

 

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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