The role of foreseeability
58 Before proceeding to consider the four heads under which the defendant grouped its legal arguments, it is convenient to set out a passage from Minister Administering the Environmental Planning and Assessment Act, 1979 v San Sebastian Pty Ltd [1983] 2 NSWLR 268 at 295-296 on which the defendant relied. Glass JA there said:
"Since the proximity relationship permeates much of the discussion which follows, it is as well to say something at this point about 'the foreseeability of the plaintiff's damage' which is sometimes equated with it. The blunt notion that they are interchangeable, although encouraged by earlier decisions, has been sharpened by subsequent analysis which has rejected ambivalent terms such as likely and unlikely and displaced reasonable foreseeability in favour of the more precise term reasonably foreseeable possibility. Coupled with this a recognition has emerged that the foreseeability inquiry at the duty, breach and remoteness stages raises different issues which progressively decline from the general to the particular. The proximity upon which a Donoghue type duty rests depends upon proof that the defendant and plaintiff are so placed in relation to each other that it is reasonably foreseeable as a possibility that careless conduct of any kind on the part of the former may result in damage of some kind to the person or property of the latter: Chapman v Hearse (1961) 106 CLR 112, at 120, 121. The breach question requires proof that it was reasonably foreseeable as a possibility that the kind of carelessness charged against the defendant might cause damage of some kind to the plaintiff's person or property: Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd; The Wagon Mound (No 2) [1967] AC 617, at 642, 643, Wyong Shire Council v Shirt (1980) 54 ALJR 283, at 285, 286; 29 ALR 217, at 219-222. Of course, it must additionally be proved that a means of obviating that possibility was available and would have been adopted by a reasonable defendant, ibid. The remoteness test is only passed if the plaintiff proves that the kind of damage suffered by him was foreseeable as a possible outcome of the kind of carelessness charged against the defendant: Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383, at 390."
59 One difficulty with this passage is that it may assume that "proximity" is an essential element in liability for negligent acts. To the extent that it did make that assumption, it received some support from later High Court authority. But in Sullivan v Moody (2001) 183 ALR 404 at [43]-[48] Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ indicated that the role of "proximity" is a limited one. They said:
"In Donoghue v Stevenson [[1932] AC 562], the House of Lords, by a majority of three to two, held that such a duty was owed by the manufacturer of a beverage to a consumer of a beverage where the manufacturer sold the product to a distributor and it was ultimately sold to the consumer in circumstances such that the consumer could not discover a defect in the beverage by inspection. It was established that it was not necessary for a plaintiff to show that a case was covered by, or closely analogous to, existing precedent, and that there were general principles by reference to which a claim in negligence fell to be decided. The first principle was that, in order to support an action for damages for negligence, a plaintiff must 'show that he has been injured by the breach of a duty owed to him in the circumstances by the defendant to take reasonable care to avoid such injury' [[1932] AC 562 at 579 per Lord Atkin].
Lord Atkin, noting how difficult it was to find in the authorities statements of general application defining the relations between parties that gave rise to that duty, and pointing out that there must be some element common to all the particular relations which had been held to involve a duty said [[1932] AC 562 at 580]:
'To seek a complete logical definition of the general principle is probably to go beyond the function of the judge, for the more general the definition the more likely it is to omit essentials or to introduce non-essentials. The attempt was made by Brett MR in Heaven v Pender , in a definition to which I will later refer. As framed, it was demonstrably too wide, though it appears to me, if properly limited, to be capable of affording a valuable practical guide'.
In Heaven v Pender , Brett MR, addressing the question what is the proper definition of the relation between two persons which imposes on one of them a duty to observe, with regard to the person or property of the other, care to prevent injury, said [(1883) 11 QBD 503 at 509]:
'… whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger.'
Ten years later, in Le Lievre v Gould [[1893] 1 QB 491 at 504] A L Smith LJ described that as a statement of principle 'that a duty to take due care [arose] when the person or property of one was in such proximity to the person or property of another that, if due care was not taken, damage might be done by the one to the other'. That statement appears to refer to a limited form of proximity: proximity of person or property. But Lord Atkin said that it was not to be understood as limited to physical proximity. It was intended 'to extend to such close and direct relations that the act complained of directly affects a person whom the person alleged to be bound to take care would know would be directly affected by his careless act' [[1932] AC 562 at 581]. Even so, his Lordship was speaking of 'close and direct relations'. He went on to acknowledge that there will no doubt be 'cases where it will be difficult to determine whether the contemplated relationship is so close that the duty arises' [[1932] AC 562 at 582].
The references to 'relations', and to the problem of deciding which relations are sufficiently proximate to give rise to a duty of care, in part reflects the previous history of the law of negligence, the focus of attention often being particular categories of relationship. The search was for a unifying principle which informed the decisions in respect to those categories. The actual conclusion in Donoghue v Stevenson was that, at least in certain circumstances, the manufacturer of a product intended for human consumption stood in a sufficiently proximate relation to an ultimate consumer of the product to attract a duty of care. But Lord Atkin, in his formulation of principle, was seeking to find 'a valuable practical guide', and warned against 'the danger of stating propositions of law in wider terms than is necessary' [[1932] AC 562 at 583-584]. Consistently with his reasoning, he might also have warned against the danger of stating such propositions in more categorical terms than is appropriate.
As Professor Fleming said [Fleming, The Law of Torts , 9th ed, (1998) at 151], 'no one has ever succeeded in capturing in any precise formula' a comprehensive test for determining whether there exists, between two parties, a relationship sufficiently proximate to give rise to a duty of care of the kind necessary for actionable negligence. The formula is not 'proximity'. Notwithstanding the centrality of that concept, for more than a century, in this area of discourse, and despite some later decisions in this Court which emphasised that centrality [eg Jaensch v Coffey (1984) 155 CLR 549 especially at 584-585 per Deane J; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 52 per Deane J], it gives little practical guidance in determining whether a duty of care exists in cases that are not analogous to cases in which a duty has been established [ Hawkins v Clayton (1988) 164 CLR 539 at 555-556 per Brennan J; Hill v Van Erp (1997) 188 CLR 159 at 210 per McHugh J; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at 96-97 [270]-[274] per Hayne J]. It expresses the nature of what is in issue, and in that respect gives focus to the inquiry, but as an explanation of a process of reasoning leading to a conclusion its utility is limited."
60 Another matter to be borne in mind in considering Glass JA's analysis is that he regarded reasonable foreseeability as an "undemanding" standard (Shirt v Wyong Shire Council [1978] 1 NSWLR 631 at 641). That particular view is a view which the law in future, and indeed perhaps at present, may not reflect.
61 It must also be remembered that reasonable foreseeability is a necessary condition for liability, not a sufficient condition.
62 Subject to those caveats, the analysis of Glass JA must be given the deep respect any pronouncement of his, particularly in the field of personal injury litigation, deserves. Indeed, though the defendant said it could not point to any authority applying Glass JA's analysis, there is some support for it. Thus in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 Mason J said that "foreseeability in connection with the existence of the duty of care" involved "a more generalised inquiry" than "foreseeability in the context of breach of duty". See also Bus v Sydney County Council (unreported, 4 April 1986, NSWSC), where at p 15 Wood J said he found the analysis to be "of considerable assistance"; G G Rudge v Murray Tractors Importers Pty Ltd (unreported, 9 November 1989, NSWCA) per Hope AJA at p 9, Gleeson CJ and Meagher JA concurring; Miletic v Capital Health Commission (1992) 108 FLR 213 at 215-216 per Higgins J; and Ratcliffe v Jackson (unreported, 27 May 1993, Tas FC) at p 7 per Underwood J.