If any form of harm is reasonably foreseeable, then whoever is able to exercise some control over the putative source of risk is encumbered with a duty to protect everyone who may be exposed to that risk. This applies whenever any person or organisation at all comes into a situation where they are exposed to the risk. The risk may be presented by a very small thing indeed – an uneven footpath, a tiny spot of oil or water on the ground, an ambiguous sign, an administrative error or miscalculation that should be easy to spot. These things may be innocuous almost all of the time, but in a small minority of cases a serious accident or loss may occur – so that a slip on a spot of oil could result in a skull fracture. It is the small minority of cases which the law requires be catered for, not the naturally expected cases where either the risk does not materialise, or where people deftly avoid the risk or cope with a minor mishap.


Obvious Risks

Where a risk of harm is patently obvious then people are expected to take reasonable care for their own safety. (This is different to the defence of contributory negligence). In Romeo v Conservation Commission[1] a 16 year old girl fell over a cliff in a coastal park in Darwin and was injured seriously. She had consumed alcohol that night. Adjacent to the cliff was a car park which had been built by the defendant, bordered by a low log fence. There was also a line a vegetation before the cliff. No injury had ever occurred in over 100 years, meaning that the probability of harm was very small. An issue that went to the High Court was whether or not the defendant should have fenced off the entire eight kilometre cliff. Justice Kirby stated that ‘Where a risk is obvious to a person exercising reasonable care for his or her own safety, the notion that the occupier must warn the entrant about that risk is neither reasonable nor just.’



Insignificant Risks

A risk of harm so small as to be insignificant will not create  a duty of care upon the defendant. While it may technically be foreseeable, it is too small to amount to a breach of the duty if the defendant has not safeguarded against it. In Bolton v Stone[2] the plaintiff, Ms Stone, was struck by a cricket ball while walking on the street in front of her house. A cricket match was ensuing on an adjacent cricket ground, and the ball was hit out of the ground. The ground had been used for cricket matches since 1864. The ground was surrounded by a high fence, made effectively higher by an uphill slope of the ground. The ball travelled about 90 metres to where the Plaintiff was standing. The court found that the trajectory of the ball was exceptional, exceeding anything previously seen at the ground, and that it was very rare that a ball was hit over the fence during a match.


It was held that while the risk of injury may have been foreseeable, the chance of such an occurrence was too slight to make the defendant liable. The test formulated was whether, considering the matter from the point of view of safety, would a reasonable person in the defendant’s position have thought it right to refrain from taking further steps to prevent the damage in question. It is required for liability to stand, that a reasonable person should see the risk as sufficiently probable to anticipate it; in this instance the risk was too remote.





Salient Features Approach

A duty of care upon the defendant toward the plaintiff is not presumed wherever it seems fair or realistic. In earlier times there was a test known as Proximity, in which the plaintiff had to establish that the defendant had a relationship in time, space or function, sufficient to owe a duty of care – to be a “neighbour” in Donoghue v Stevenson terminology. For reasons a little beyond this book, this has fallen into disregard. The High Court has developed a more sophisticated approach to the determination of a duty of care in the last few decades which is known as the “salient features approach.” This can be broken into three categories:






Reasonableness of Taking Precautions

Another issue to consider is the expense and difficulty involved in preventing a risk. A case in point is Vairy v Wyong Shire Council[5] The plaintiff dived into coastal waters and incurred a fracture to his neck, resulting in quadriplegia. The plaintiff had seen many others do the same without problems from many locations along the coast, and claimed that signs should have been erected to warn against the practice.


The court considered the case from the perspective of how the defendant was supposed to act,





Professional Negligence

Professionals, and anyone who puts themselves out to the public as having professional skills, are held to a standard of care defined by the relevant profession. The standards are those approved by significant bodies of opinion, but they do not have to be universally accepted. However








[1] Romeo v Conservation Commission (NT) (1998) 192 CLR 431.

[2] Bolton v Stone [1951] AC 850.

[3] Caltex Refineries (Qld) Pty Limited v Stavar [2009] NSWCA 258. There were five defendants in the original trial, Caltex being only one. The plaintiff’s name is second here as this was an appeal judgment.

[4] Caltex, above n3, [104]-[105].

[5] Vairy v Wyong Shire Council (2005) 223 CLR 422.

Tort Law - Negligence

Duty of Care