novel duty

Establishing a Novel Duty in Three Steps

Prepared by Dr. Brandon D. Stewart

This handout is designed to assist in the analytical framework termed the 'salient features approach' that Australian courts employ to decide the recognition of new duties under negligence law.

The Salient Features Approach

• The salient features approach necessitates that a court balances the factual characteristics or 'salient features' of the relationship between the defendant and the plaintiff.
• The primary question is whether there is a meaningful level of closeness between the two parties such that it is fair and just (or legitimate) for the defendant to owe a duty to the plaintiff.

List of 17 Salient Features (Allsop CJ in Caltex Refineries v. Stavar)

1. Foreseeability of harm
2. Nature of the harm alleged
3. Degree and nature of control able to be exercised by the defendant to avoid the harm
4. Degree of vulnerability of the plaintiff to harm from the defendant’s conduct, considering their capacity and reasonable expectation to protect themselves
5. Degree of reliance by the plaintiff upon the defendant
6. Assumption of responsibility by the defendant
7. Proximity or nearness in physical, temporary, or relational terms between the plaintiff and defendant
8. Existence of a category of relationship between the defendant and the plaintiff or someone closely connected to the plaintiff
9. Nature of the activity undertaken by the defendant
10. Nature or degree of hazard or danger inherent in the defendant’s conduct or activity
11. Knowledge (actual or constructive) by the defendant that their actions will cause harm to the plaintiff
12. Potential indeterminacy of liability
13. Nature and consequences of actions that can be taken to avoid harm to the plaintiff
14. Extent of imposition on autonomy or freedom, including rights to pursue individual interests
15. Existence of conflicting duties arising from other principles, laws, or statutes
16. Consistency with terms, scope, and purpose of relevant statute
17. Desirability and need for coherence in the structure and fabric of common law

Key Considerations

• The list provided includes considerations that extend beyond the direct 'salient features' of relationships, including aspects related to specific duty categories and redundancy in considerations already covered by concepts like double foreseeability or breach.
• The High Court in Sullivan rejected the notion of determining a duty of care based solely on what is 'fair and just'; nevertheless, policy issues related to justice and fairness remain relevant in the salient features framework.

Application of the Salient Features Approach

To effectively navigate the salient features approach, follow these steps:

1. Create a Duty Statement

   • Formulate a duty statement based on the facts provided. The duty statement must record:
     • A general label for both the defendant and plaintiff
     • The type of duty involved
     • The scope of the duty if applicable
   • Example: An occupier (defendant label) owes a duty (duty type) to a person on their premises (plaintiff label) to protect them from physical injury caused by the state of the premises (scope).

2. Determine if the Claimed Duty is Novel

   • Compare your duty statement with existing duties covered in relevant materials. This assists in determining whether the claimed duty is:
     • Already recognized (if so, proceed to element #2: breach)
     • Sufficiently analogous to an existing duty (quickly cover step 3)
     • Novel, which necessitates proceeding to the next step.
   • Note 1: Drawing analogies can be challenging; it is advisable to proceed to step 3 even if your analogical reasoning seems weak.
   • Note 2: Sometimes, courts utilize the salient features approach to assess the scope of the defendant’s duty, determining whether to extend an established duty to encompass the plaintiff’s loss or the risk that has materialized. This may overlap with other negligence elements (e.g., damage under element #3 and scope of liability under element #4).

3. Balance the Salient Features

   • Assess the salient features from the Caltex Refineries list by applying them to the facts at hand along with relevant duty categories.
   • The High Court's modern approach aligns with incrementalism, leading to the slow development of negligence law based on precedents and salient principles instead of broader social policy.
   • For a non-paradigm positive duty:
     • a) Identify the special relationship/fact and relevant salient features such as:
     • Control over land (risk naturally occurring): #3 Control, #14 Autonomy, #13 Avoidance cost
     • Special relationship of control and plaintiff vulnerability: #8 Relationship, +/- #4 Vulnerability
     • Assumption of responsibility and plaintiff reliance: #6 Assumption of Responsibility, +/- #5 Relying
     • b) Analyze foreseeability of harm based on per Donoghue and Chapman, ensuring that you've properly identified a special relationship or fact.
     • c) Consider 'policy': Courts frequently depend on policy to reject an otherwise prima facie duty. Policy can encompass various meanings, often used to indicate reasons against imposing a duty due to unfairness or judicial coherence.
     • Example: In Australia, legal advocates are shielded from negligence by policy concerns to prevent challenges to final judicial determinations.
     • Note 3: It’s permissible to reference special relationships or facts during examinations without requiring detailed exposition on each element.
   • Note 4: The 'create the peril' principle (or innocent risk creation principle) indicates a paradigm duty; articulate how the defendant's actions created peril and explore the high degree of foreseeability of harm.

Importance of Addressing 'Policy'

• The term 'policy' in legal contexts can imply various concepts, often signifying fundamental principles guiding legal frameworks. For instance, the responsibility of not generating indeterminate liability, which would signify liability for an unidentified time or for an uncertain class of individuals (Ultramares Corporation v Touche) is a notable policy concern.
• Judges are traditionally reluctant to communicate their policy considerations explicitly, leading many legal scholars to argue that it is the function of the legislature to decide on matters of policy as they pertain to duties and responsibilities.