Duty of care
153 The first five issues identified by the appellant concerned the decision of the Tribunal as to the correct manner, in point of law, to determine whether the appellant owed a duty of care to Mrs Stavar. In order to address those questions, it is necessary to identify first the correct approach as a matter of law, and then to determine whether his Honour departed from that approach. To the extent that his Honour articulated the approach he followed, that may be treated as a decision of the Tribunal in point of law.
154 The history of the common law in this respect is fraught. Writing in 1992, six decades after the decision in the House of Lords in Donoghue v Stevenson [1932] AC 562, Lord Mustill said:
"We can thus see that in the space of 60 years the courts have successively embraced six mutually inconsistent doctrines in a field of great theoretical and practical importance …. It involves no disloyalty on my part to the legal system in which I have spent my working life, or to past, present and future colleagues, to say that the picture thus painted is not one of unqualified success."
155 His Lordship's comments, to be found in a paper entitled "Negligence in the World of Finance" (1992) 5 The Supreme Court Journal 1, 23 (published by the Malaysian Supreme Court) are apposite in relation to this country, as much as to the UK. Some of the changes in approach might better be described as changes in emphasis rather than novel "doctrine", some being properly understood as corrections to the use made of earlier statements taken out of their immediate context. Nevertheless, a description of the history as one of "doctrinal tergiversations" is not entirely without foundation: see Markesinis and Deakin's Tort Law (6th ed, OUP, 2008) at 125.
156 It is arguable that the heart of the problem lies in the acceptance of "negligence" as a unitary concept. To identify criteria at a sufficient level of generality to allow for their application across the indefinite categories of relationships, circumstances, risks and consequences which may arise is a recipe for confusion and misunderstanding. A risk of physical harm to an identifiable and discrete class of individuals, arising from the positive act of another individual, is a far cry from the failure of a statutory authority to take steps to protect one person from a risk of economic loss caused by another. An example of this danger was identified by McHugh J in Tame v New South Wales [2002] HCA 35; 211 CLR 317 at [100]-[101]. As his Honour suggested, the remarks of Lord Reid in Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound [No 2]) [1967] 1 AC 617 at 643-644, that a real risk which would not be brushed aside as farfetched might be sufficient to give rise to a duty of care, were not unreasonable in the circumstances of the case, namely the risk of furnace oil being ignited by welding sparks. However, this proposition permitted a large expansion of the scope of negligence when treated as one of universal application.
157 A second difficulty arises from the standard formulations of the concept of "negligence". Thus, a duty to take reasonable steps to avoid foreseeable risks of harm is not merely an essential characteristic of the tort; it identifies a concept of duty which is largely self-defining, subject to the imposition of extraneous constraints. The content of the duty must be defined by reference to the steps which a reasonable person would take to eliminate or reduce the risk, an element which is inherent in the concept of "reasonable care".
158 As explained by Gleeson CJ in Tame, "reasonable foreseeability of the kind of injury that has been suffered by the person to whom the duty is owed" is a necessary, but not sufficient condition of the existence of a legal duty of care: at [12]. As the scope of the duty has expanded to encompass risks not merely of personal injury, but of psychological harm and economic loss, and the kinds of conduct have expanded to include not merely actions, but words and failures to act, different mechanisms have been sought to place boundaries on the scope of the tort.
159 It is usual to explain that the existence (or absence) of a duty is a question of law. However, that is an oversimplification. The existence of a duty depends in part on findings of fact and part on value judgments and legal policy. McHugh J stated in Tame that "it is arguable that the notion of reasonable foresight in Lord Atkin's speech in Donoghue v Stevenson is, and was intended to be, a compound conception of fact and value": at [105]. His Honour continued:
"At least in some situations, policy issues may be relevant to the issue of reasonable foresight because reasonableness requires a value judgment."
160 It may similarly be said that the "multi-factorial" approach now favoured in this country requires consideration of a congeries of disparate elements, some of which are entirely factual in nature, others of which require value judgment and others an infusion of legal policy. There was always a degree of irony in maintaining that the existence of a duty involved a question of law (and thus not for determination by a jury) when the concept of reasonableness itself invoked consideration of community standards. Thus Gleeson CJ at [14] in Tame invoked the remarks of Lord Macmillan in Donoghue v Stevenson (at 619) to the effect that ""conception[s] of legal responsibility ... adap[t] to ... social conditions and standards", as did McHugh J at [97] stating that a risk "was regarded as unreasonable and one to be prevented only if reasonable members of the community would think it sufficiently great to require preventative action", obtaining support from Fleming, The Law of Torts (LBC 1957) pp 131-132.
161 These are not novel propositions: in Caledonian Collieries Ltd v Speirs [1957] HCA 14; 97 CLR 202 at 220, Dixon CJ, McTiernan, Kitto and Taylor JJ explained:
"It has been contended before us that it was for the judge to decide as a matter of law whether the appellant was under any duty of care, and if so what that duty was. It was, of course, for the judge to tell the jury what conclusions of fact they must reach before they could be entitled to treat the appellant as under a duty of care to users of the level crossing, and to describe in abstract terms the standard of that duty if it existed. This his Honour did; and in the circumstances of the case the rest was for the jury."
162 In Caledonian Collieries, the joint judgment affirmed (at 221) the correctness of a statement of the function of judge and jury in respect of questions of duty expressed in similar terms by Jordan CJ in Alchin v Commissioner for Railways (1935) 35 SR (NSW) 498 at 501-502. To similar effect, Gleeson CJ stated in Neindorf v Junkovic [2005] HCA 75; 80 ALJR 341, a case involving the liability of an occupier of premises, that the abandonment of specific categories of duty had resulted in "a generalised standard of care, described as what a reasonable person would, in the circumstances, do by way of response to a foreseeable risk": at [8]. His Honour continued at [10]:
"The jury system had the advantage of committing a judgment on reasonableness to the collective wisdom of a group of citizens chosen at random from the community."
163 Once it is accepted that the existence of a duty depends in part on matters of fact and evaluative judgment, it becomes necessary for the appellant to define with a greater degree of precision the legal error which is said to infect the approach taken by the Tribunal; it is not sufficient merely to allege error in determining that a duty existed. It may also become necessary to inquire whether particular factual determinations went to the existence of the duty or to questions of breach.
164 The conceptual distinction between the existence of a duty and its breach is well-understood, but will depend in a particular case upon the degree of precision with which the duty is identified. In Shirt v Wyong Shire Council [1978] 1 NSWLR 631 at 639, in a passage cited with approval by Gummow J in Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at [71], Glass JA stated:
"In my opinion, the factual considerations which I have listed are entirely relevant to the breach question. They are, however, of only limited relevance to the duty question. This is because the existence or non-existence of a duty owed by the defendant Council to the plaintiff falls to be considered upon a higher level of abstraction."
165 A number of further propositions should be identified at this stage. First, the rejection, in recent case law, of tests adopted in earlier times does not necessarily involve the Court in turning its back on the principle underlying that which had formerly been thought an appropriate formulation of a test. Thus, the rejection of "proximity" as a comprehensive test for determining whether the relationship between two parties gives rise to a duty of care, was based upon the inutility of the concept: see Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1 at [272] (Hayne J) and Sullivan v Moody [2001] HCA 59; 207 CLR 562 at [48] (Gleeson CJ, Gaudron, and McHugh, Hayne and Callinan JJ). This concern was not novel. In Leigh Sillivan Ltd v Aliakmon Shipping Co Ltd [1985] QB 350 at 395, Robert Goff LJ had described the general notion of proximity as question begging because once "proximity is no longer treated as expressing a relationship founded simply on foreseeability of damage, it ceases to have an ascertainable meaning; and it cannot therefore provide a criterion for liability". This passage was cited by Deane J in Sutherland Shire Council v Heyman [1985] HCA 41; 157 CLR 424 at 496-497. However, his Honour considered that the concept had both "substance and true function":
"The requirement of proximity is directed to the relationship between the parties in so far as it is relevant to the allegedly negligent act or omission of the defendant and the loss or injury sustained by the plaintiff."
166 Given more recent developments, it is not necessary to set out the full passage from his Honour's judgment which concluded that "in a new or developing area of the law of negligence, the question what (if any) combination or combinations of factors will satisfy the requirement of proximity is a question of law to be resolved by the processes of legal reasoning, induction and deduction": at 498. The relevance of that discussion is to demonstrate that the current position adopted by the High Court is one which has evolved over time. What would now be described as relevant or salient features, have long been appreciated as elements within the broader notion of "proximity".
167 The test adopted by the House of Lords in Caparo Industries Plc v Dickman [1990] 2 AC 605 was rejected for reasons explained in Sullivan at [49]:
"There is a danger that judges and practitioners, confronted by a novel problem, will seek to give the Caparo approach a utility beyond that claimed for it by its original author [Lord Bridge of Harwich]. There is also a danger that, the matter of foreseeability (which is often incontestable) having been determined, the succeeding questions will be reduced to a discretionary judgment based upon a sense of what is fair, and just and reasonable as an outcome in the particular case. … The question as to what is fair, and just and reasonable is capable of being misunderstood as an invitation to formulate policy rather than to search for principle."
168 The distinction between formulation of policy and application of principle may be understood as a reflection of the remarks of Stephen J in Caltex Oil (Australia) Pty Ltd v The Dredge "Willemstad" [1976] HCA 65; 136 CLR 529 at 567, dealing with a case of economic loss. His Honour commenced by referring to "that uncertainty that appears necessarily to affect this area of the law if entitlement to damages is to depend upon case-by-case application of a general policy, itself flexible and ill-defined and dependent upon a survey of a quite variable group of considerations, many of which will be susceptible of the production of differing, subjective judicial reactions". (Those remarks, it may be noted, have cogency with respect to a "multi-factorial approach" unless guidance is available as to how a range of potentially relevant factors should be considered.) Stephen J continued:
"Policy considerations must no doubt play a very significant part in any judicial definition of liability and entitlement in new areas of the law; the policy considerations to which their Lordships paid regard in Hedley Byrne are an instance of just such a process and to seek to conceal those considerations may be undesirable. That process should however result in some definition of rights and duties, which can then be applied to the case in hand, and to subsequent cases, with relative certainty. To apply generalized policy considerations directly, in each case, instead of formulating principles from policy and applying those principles, derived from policy, to the case in hand, is, in my view, to invite uncertainty and judicial diversity."
169 This passage was referred to and relied upon by Gleeson CJ in Travel Compensation Fund v Tambree [2005] HCA 69; 224 CLR 627 at [28], in a case involving principles of causation. His Honour continued at [29]:
"To acknowledge that, in appropriate circumstances, normative considerations have a role to play in judgments about issues of causation is not to invite judges to engage in value judgments at large. The relevant norms must be derived from legal principle."
170 The tests rejected in Sullivan were not erroneous in the sense of being based on irrelevant matters, but were either unhelpful or capable of being misunderstood and misapplied or (in the case of Caparo) both. It follows that reference to proximity will not demonstrate an error of law, unless the underlying concept is misunderstood and therefore misapplied. As explained by Gummow J in Perre v Apand Pty Ltd [1999] HCA 36; 198 CLR 180 at [198], a case involving a claim for economic loss:
"The question in the present case is whether the salient features of the matter gave rise to a duty of care owed by Apand. In determining whether the relationship is so close that the duty of care arises, attention is to be paid to the particular connections between the parties."
171 Secondly, the rejection of earlier tests has involved an express recognition that the statements of law had overstepped their mark in their search "for a unifying principle": Sullivan at [47]. The Court was at pains to emphasise in Sullivan that:
"Different classes of case give rise to different problems in determining the existence and nature or scope, of a duty of care."
172 Given this warning, as a reflection of the primary problem noted above, it would be misguided to seek a new unifying formulation or approach. Even the "multi-factorial" or "salient features" approach should not be treated in this way. Like the remarks in the judgment of Mason J in Wyong Shire Council v Shirt, the purpose of the multi-factorial approach is to remind those seeking to determine whether a duty exists of the scope of the considerations which must be taken into account. It is intended to overcome the very real risk that a principle stated as an aphorism will be circular or at least risk being so, because the principle "is stated in terms which conceal the fact that the process of deciding on liability begins with an answer which is largely intuitive, and reasons backward from it": Lord Mustill, op cit, p 10. The multi-factorial approach should not, therefore, be treated as a shopping list, all the items of which must have application in a particular case. Rather, it provides a list of considerations which should be considered, as potentially relevant, depending on the kind of case before the Court. Further, it is necessary to distinguish between those considerations which are essentially factual, those which require value judgments and those which may require the application of legal policy.
173 Thirdly, it is necessary to understand the comments in Sullivan with respect to the distinction between "policy" and "principle". As noted above, the judgment of the Court sought to identify a distinction between "an invitation to formulate policy", and "to search for principle". The judgment stated at [49]:
"The concept of policy, in this context, is often ill-defined. There are policies at work in the law which can be identified and applied to novel problems, but the law of tort develops by reference to principles, which must be capable of general application, not discretionary decision-making in individual cases."
174 The concept of "policy" was being used to identify that which had earlier been referred to as "a discretionary judgment based upon a sense of what is fair, and just and reasonable as an outcome in the particular case". Such language might be described as inviting an unprincipled approach. It was not suggested that Caparo envisaged such an approach, or that such an approach has been adopted subsequently in English case law: see, eg, Witting C, Duty of Care: An Analytical Approach (2005) 25 Oxford J Leg Studies 33 at 36-38. The Court's purpose was clearly not to exclude questions involving normative elements nor the need for coherence between different parts of the general law: Sullivan at [42]; The Dredge "Willemstad" above at [168].
175 Fourthly, in considering the various factors which have been identified as salient features , it is important to distinguish between those which are necessary but not sufficient, those which constitute constraints (whether absolutely or as matters of weight) and those factors which are appropriate matters to be considered. It is also necessary, as noted above, to distinguish factual considerations from normative considerations, although both may be involved in a particular factor. To identify error on the part of the Tribunal in deciding a point of law, it may be necessary to find that the Tribunal has treated a particular condition as sufficient, as opposed to merely necessary, or has treated an absolute constraint as a factor to be weighed in the balance or has erroneously identified a relevant legal principle.
176 Fifthly, there is no doubt that factors which are relevant in determining the existence of a duty, may also be relevant to questions of breach and even causation of loss. The three concepts are inter-related: see remarks of Brennan J in John Pfeiffer Pty Ltd v Canny [1981] HCA 52; 148 CLR 218 at 241-242, reiterated in Sutherland Shire Council v Heyman 157 CLR at 487.
177 To the extent that similar factors are relevant in determining both duty and breach thereof, a critical distinction is the position from which each is to be assessed. Duty requires an objective prospective assessment of the risks foreseeable as possible, but not farfetched or fanciful, to the reasonable person in the position of the defendant. In order to give content to the duty, it would be necessary to consider the steps which might be available to such a person, and his or her capacity to take such steps as might mitigate or avoid the risk. The assessment of breach involves an examination of the actual conduct of the defendant and the options available in the circumstances of the case. This distinction is valid, but the inter-relationship is clear. The defendant's conduct will be judged against a standard set by the content of the duty.
178 It has also been suggested that a determination as to duty is undertaken at a higher level of abstraction or generalisation than is the determination of breach. In a sense, that is to say no more than that one is a prospective (albeit conducted retrospectively) assessment of the circumstances as they arose prior to the conduct in question: Vairy at [124] (Hayne J). Nonetheless, such statements appear to encourage the consideration of duty at a relatively high level of abstraction. That approach has been said to have been appropriate "by and large": see Neindorf, 80 ALJR 341 at [50] (Kirby J). The reason for such an approach is to avoid mixing questions of duty with questions of breach: see, eg, Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512 at [309] (Hayne J); Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540 at [106] (McHugh J). This theme was picked up again in Vairy, where Gummow J, referring to the reasoning of Hayne J, stated:
"60 The determination of the existence and content of a duty is not assisted by looking first to the damage sustained by the plaintiff and the alleged want of care in that regard by the defendant. There is a particular danger in doing so in a case such as the present. The focus on consideration of the issue of breach necessarily is upon the fate that befell the particular plaintiff. In that sense analysis is retrospective rather than prospective.
61 In his reasons in this appeal, Hayne J explains why an examination of the causes of an accident that has occurred does not assist, and may confuse, in the assessment of what the reasonable person ought to have done to discharge the anterior duty of care. Moreover, an assessment of what ought to have been done, but was not done, critical to the breach issue, too easily is transmuted into an answer to the question of what if anything had to be done, a duty of care issue."
179 On the other hand, the higher the level of abstraction at which the duty is identified, the less likely it is to provide any useful role in determining the outcome of the case: Vairy at [73] (Gummow J); see also Amaca Pty Ltd v AB & P Constructions Pty Ltd [2007] NSWCA 220; (2007) Aust Torts Rep 81-910; 5 DDCR 543 at [137]. In other circumstances, the High Court has emphasised the desirability of having regard to the harm suffered by the plaintiff in considering the scope of the relevant duty, if any: see also Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd ("Wagon Mound [No 1]") [1961] AC 388 at 425 (PC - Viscount Simonds). As explained by Gummow and Hayne JJ, in Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; 217 CLR 469:
"81 In these circumstances it is neither necessary nor appropriate to decide any question about the existence of a duty of care. … It is not appropriate to do so because any duty identified would necessarily be articulated in a form divorced from facts said to enliven it. And, as the present case demonstrates, the articulation of a duty of care at a high level of abstraction either presents more questions than it answers, or is apt to mislead."
82 Here, as in so many other areas of the law of negligence, it is necessary to keep well in mind that the critical question is whether the negligence of the defendant was a cause of the plaintiff's injuries. The duty that must be found to have been broken is a duty to take reasonable care to avoid what did happen, not to avoid 'damage' in some abstract and unformed sense."
180 The diminishing need for reliance on the concept of duty to control decision-making by juries, the difficulty in formulating the level at which the duty should be identified, the lack of clarity as to how a court should approach novel cases and the possibility that a focus on duty will marginalise important factual questions, have led both to calls for the abandonment of reliance upon any such concept (beyond the test of foreseeability) and to fears that an important element in the law of negligence is disintegrating: for an example of the former, see Handsley E, Sullivan v Moody: Foreseeability of injury is not enough to found a duty of care in negligence - but should it be?" (2003) 11 Torts LJ 1; as an example of the latter, see Weinrib E, "The Disintegration of Duty" in Exploring Tort Law (Madden, ed, Camb UP, 2005) and Witting C, "Tort Law, Policy and the High Court of Australia" (2007) 31 Melb UL Rev 569. As pithily expressed by Professor Weinrib (p 149):
"The disintegration of duty is the consequence of thinking that duty is a matter of policy, and that policy, in turn, refers to the various independent goals that liability might serve. On this view, each particular kind of duty represents the balance of goals, in themselves diverse and competing, that is peculiar to it. However, another notion of policy refers to the exercise of practical judgment in elucidating what the general conception of duty might mean in particular circumstances. The general conception provides not (as has often been assumed) a test of duty, but a structure of thinking that is actualized in legal reasoning through the casuistic assessment of facts or comparison of cases or through the elucidation of its particular normative features in the overall context of a legal system that values coherence."
181 On one view, the attempt by Lord Atkin in Donoghue v Stevenson to set out a "general conception" identified as the "neighbour" principle was an exercise which ran counter to the methodology of the common law, at least as understood by the American realists. On the other hand, it has been remarkably successful over more than half a century in supplying a touchstone for coherence within the tort of negligence, providing a basis for rationalising existing areas of duty, whilst providing some guidance in the development of the concept in novel areas.