← The hardest concepts in Australian law
In one breath
Negligence requires a duty of care, and the High Court has said there is no single test for when one exists: reasonable foreseeability is necessary but not enough. In new situations, especially pure economic loss and omissions, courts look at the salient features of the relationship, such as vulnerability, control, knowledge and coherence with the rest of the law.
The picture
The surveyor’s map
A surveyor works with a map that has two kinds of ground. Some areas are charted and paved: a driver owes a duty to other road users, a doctor to a patient, a manufacturer to the people who use its products. Nobody surveys those again. Other areas are open ground with no roads. To plan a route across it, the surveyor takes bearings from known landmarks and notes the slopes, rivers and soil. No single instrument makes the decision.
The salient features are those bearings. Is the plaintiff vulnerable, unable to protect themselves from the risk? Does the defendant control the risk, and know of it? Did the plaintiff rely on the defendant? Would a duty fit with other areas of law, such as contract and statute, or contradict them? Would it expose the defendant to indeterminate liability to an unknown number of people? A court weighs these together, reasoning step by step from the charted areas, to decide whether there should be a road at all. Foreseeability is the starting point, not the destination.
Where the picture stops working
A map is drawn once, but duty questions are answered case by case, so two similar cases can differ on small points. The picture also underplays statute: civil liability legislation in the States and Territories now governs many issues, such as mental harm and public authorities, and can change the result even where the common law would find a duty. Which features matter most varies with the kind of case.
How it really works
- 1Place the rule. The law of duty is common law and the same across the country, and State and Territory civil liability Acts then modify duty, breach and damages in various respects, with wording that differs.
- 2Check for an established category. If the case fits a settled relationship such as road user, employer, doctor or manufacturer, the duty follows.
- 3If not, ask whether harm to the plaintiff, or to a class including them, was reasonably foreseeable. That is the minimum.
- 4Examine the salient features: vulnerability, the defendant’s control and knowledge, reliance, assumption of responsibility, the plaintiff’s ability to protect themselves, the kind of harm, and coherence with other law. Pure economic loss and omissions need special care.
- 5Decide by reasoning incrementally from decided cases, not from a general formula, and state the duty at the right level: who owes it, to whom, and for what kind of harm.
Why people get it wrong
- Thinking foreseeability decides the matter. It is necessary, not sufficient.
- Looking for one master test. The High Court has declined to adopt a single formula for all cases.
- Mixing duty with breach. Whether the defendant acted reasonably is a separate question.
- Assuming pure economic loss is never recoverable. It is, but only where the salient features justify a duty.
- Forgetting the statutes, which can narrow or reshape the common law position.
A worked example
The facts are invented
Pellinor Surveys prepares a report on the condition of a bridge for the council, knowing that the council will give it to the freight companies that use the bridge. Dray and Company rely on it to plan its loads. The report is carelessly wrong, the bridge is closed, and Dray loses revenue. There is no physical damage, only economic loss. The features point towards a duty: Dray could not inspect the bridge itself, it relied on the report, Pellinor knew who would use it, and the class is small and identifiable.
Change the facts: a haulier who simply read about the report in a magazine, and whom Pellinor never knew of, makes the same claim. Pellinor did not know of the reliance, and a duty to every reader would expose it to indeterminate liability. A duty is much less likely.
Try it
A claimant suffers a purely financial loss because of a defendant’s careless report. The loss was entirely foreseeable. Is a duty of care established?
Landmark authorities
Read the sources themselves; this list is a starting point.
- Donoghue v Stevenson, [1932] AC 562
- Perre v Apand Pty Ltd, (1999) 198 CLR 180
- Sullivan v Moody, (2001) 207 CLR 562
- Woolcock Street Investments Pty Ltd v CDG Pty Ltd, (2004) 216 CLR 515
Where to go next
Courses
Dictionary
More hard concepts in Australia law
- Causation and the scope of liability (Tort law)
- Occupiers’ liability (Tort law)
- Accessory liability and strangers to a trust (Equity)
This page is an educational overview. It is not legal advice and not a substitute for the sources: the statute, the rule, the case itself. Australia is a federation: the Commonwealth, the six States and the Territories each make law, and the High Court is the final court for all of it. The common law, by contrast, is one law across the country. Each page says whether the rule is constitutional, federal or common law shared by every jurisdiction, or State-by-State legislation that varies, and flags where the States and Territories differ. Each page states the usual formulation of the rule and names landmark decisions; check the primary sources of your own jurisdiction before relying on any rule.