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.’

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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.

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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:

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1. Legitimate Conduct. Where a duty of care interferes with an activity that is clearly socially legitimate, such as businesses acting in competition with each other, this is a complete defence.

2. Conflict with other duties. Courts refuse to create duties of care that conflict with other existing duties. For example, the duty of the police to prosecute offenders, or military personnel hurt or killed in action or in training.

3. Indeterminate liability. Where the amount of liability is not determined or indeterminable, this is often a complete defence.

4. Insufficient relationship between plaintiff and defendant.

 

This is not to be read as a closed list, but as an indication of what sort of situations the duty of care will be excluded from. Where there is a pre-existing case showing that a duty of care is recognised in a given situation, then such a duty will stand as a matter of common law, but where a case presents as a novel situation for common law, then the court is entitled to consider the detailed specifics of the relationship between the parties. In a limited sense the judiciary is adopting an approach to the duty of care where new situations are dealt with on their own merit unless they are metaphorically related to ones that have already been decided upon.

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The first three categories are simple propositions. An example of the fourth is to be found in Caltex Refineries (Qld) v Stavar[3] where a claim was brought by Mrs Stavar against the former employers of her husband. Mr Stavar worked with asbestos when constructing and maintaining an oil refinery, working for contracting companies. He later took employment with Ampol, the owner and occupier of the refinery. When he returned home Mrs Stavar would wash his work clothes. After Mr Stavar’s employment ended, Caltex took over the refinery. There was a very distant relationship between Mrs Stavar and Caltex, which a court would ordinarily describe as a novel situation.

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One of the judges presiding at the appeal, Allsop P, listed aspects of the parties’ relationship, itemised (a) to (q), and made the following statement to help define the approach:

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There is no suggestion in the cases that it is compulsory in any given case to make findings about all of these features [a to q]... [I]t provides a non-exhaustive universe of considerations of the kind relevant to the evaluative task of imputation of the duty and the identification of its scope and content.

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The task of imputation has been expressed as one not involving policy, but a search for principle... The assessment of the facts in order to decide whether the law will impute a duty, and if so its extent, involves an evaluative judgment which includes normative considerations as to the appropriateness of the imputation of legal responsibility and the extent... thereof. Some of the salient features require an attendance to legal considerations within the evaluative judgment.

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In short, the salient features approach declines to categorise the events of day-to-day life within simple rules. By rejecting simplicity it overcomes the narrow-mindedness that made negligence law appear unjust in past decades.

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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, looking forwards from before the accident, and not backwards in the light of hindsight. Looking forwards such an accident was foreseeable, but the burden of erecting signs at all related locations around the lake was too great. A reasonable person (or organisation) in the council’s position would not erect so many signs, and so should not be liable for failing to do that.

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The same issue was also identified in Romeo, above, in which the court declined to require the defendant to have erected fences all the way along the eight kilometre stretch of coastline due to the burden of doing so and the resulting diminution of the reserve’s value to the public.

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This would be a crucial point where a suit centres around something like a failure to prepare for an event of extraordinary proportions, such as a record breaking natural disaster – like the Boxing Day tsunami, which was a surprise to all. Even if people could be evacuated, buildings could not have been protected except by building huge sea walls along every effected coastline, at ponderous expense.

 

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. A court can, however, discard such opinion if it finds fault with it. Thus a work method recognised in a number of peer-reviewed articles, or by a respectable professional association is acceptable. If such a work method is executed correctly, the professional defendant will not be liable for damage arising in spite of the care taken. This rule is set out in legislation such as the Wrongs Act 1958 (Vic), sections 58, 59 and 60.

 

S 58     If you hold yourself out to be an expert, whether you are or not, you will be judged to be an expert.

S 59     Peer professional opinion ‘widely accepted in Australia by a significant number of respected practitioners,’ at the material time is adopted as to whether a reasonable duty of care has been breached. However the court can still find the opinion unreasonable. The existence of differing professional opinions, even by a majority, does not discredit a method.

S 60     The defence of accordance with peer opinion does not avail itself where there a failure to warn or correctly warn of the risk associated with the procedure in question.

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​[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.

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