Federal court of australia

IS THERE A DUTY OF CARE?

14.Legal Principles

200 The applicant argued that the Minister owed her a duty of care, the scope of which was variously expressed as extending to:—

(1) “exercis[ing] its statutory and non-statutory executive power under s 198AHA and s 61 of the Constitution to procure a safe and lawful abortion for her” ([12(a)] of the statement of claim); and

(2) “tak[ing] all reasonable steps to ensure that she has a safe and lawful abortion” ([18(b)] of the statement of claim).

201 Of course, the existence of a duty of care is a necessary condition of liability in negligence: Brookfield Multiplex Ltd v Owners Corporation Strata Plan No 61288 (2014) 254 CLR 185 at [19] (French CJ). The applicant does not point to authority holding that a duty of care exists in directly-comparable factual circumstances. Her submissions turn on establishing a novel duty of care. The applicant submits that the existence of a duty of care “turns most critically on two factors: the existence and nature of the statutory power exercised by the Respondents in respect of the applicant, and the facts relevant to the ‘salient factors’ that are critical to ascertaining the existence and scope of any duty in the exercise of those powers” (at [20]).

202 A “salient features” approach was set out by Allsop P (with whom Simpson J agreed) as applicable to determining whether a novel duty of care exists, in Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649, at [102] (emphasis added):

This rejection of any particular formula or methodology or test the application of which will yield an answer to the question whether there exists in any given circumstance a duty of care, and if so, its scope or content, has been accompanied by the identification of an approach to be used to assist in drawing the conclusion whether in novel circumstances the law imputes a duty and, if so, in identifying its scope or content. If the circumstances fall within an accepted category of duty, little or no difficulty arises. If, however, the posited duty is a novel one, the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by references to the “salient features” or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury.

203 At [103] his Honour set out a list of seventeen such “salient features”. They are these:

(a) the foreseeability of harm;

(b) the nature of the harm alleged;

(c) the degree and nature of control able to be exercised by the defendant to avoid harm;

(d) the degree of vulnerability of the plaintiff to harm from the defendant’s conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself;

(e) the degree of reliance by the plaintiff upon the defendant;

(f) any assumption of responsibility by the defendant;

(g) the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant;

(h) the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff;

(i) the nature of the activity undertaken by the defendant;

(j) the nature or the degree of the hazard or danger liable to be caused by the defendant’s conduct or the activity or substance controlled by the defendant;

(k) knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff;

(l) any potential indeterminacy of liability;

(m) the nature and consequences of any action that can be taken to avoid the harm to the plaintiff;

(n) the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one’s own interests;

(o) the existence of conflicting duties arising from other principles of law or statute;

(p) consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and

(q) the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law.

204 Stavar has been followed in intermediate appellate courts (Makawe Pty Limited v Randwick City Council [2009] NSWCA 412 at [17] and [92]–[94]; Hoffmann v Boland [2013] NSWCA 158 at [31] and [127]–[130]) and in this Court (Hopkins v AECOM Australia Pty Ltd (No 3) [2014] FCA 1043 at [26] (Nicholas J), Carey v Freehills (2013) 303 ALR 445 at [310]–[317] (Kenny J). Support for a multi-factorial approach is also found in Brookfield at [24] (French CJ), where his Honour said (citing Sullivan v Moody (2001) 207 CLR 562 at [50]) that “different classes of case raise different problems”, requiring a “judicial evaluation of the factors which tend for or against a conclusion, to be arrived at as a matter of principle.”

205 Kenny J’s discussion in Carey bears specific attention. Her Honour said as follows at [313]:

Where a duty of care is claimed to have arisen in a new circumstance or with respect to a new category of relationships, Australian law now requires a multi-factorial approach in assessing whether a duty of care has indeed arisen. As the New South Wales Court of Appeal noted in Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649; 259 ALR 616; [2009] NSWCA 258 at [101] (Caltex), the High Court has rejected the doctrine of proximity as a determinative factor in deciding whether a duty of care existed, as well as “the two stage approach in Anns v Merton London Borough Council [1978] AC 728; [1977] 2 All ER 492 based on reasonabl[e] foreseeability, the expanded three stage approach in Caparo Industries Plc v Dickman [1990] 2 AC 605; [1990] 1 All ER 568; (1990) 1 ACSR 636 (Caparo Industries) and any reformulation of the latter two”. See, for example, Hill [v van Erp (1997) 188 CLR 159] at CLR 210; ALR 725 per McHugh J, at CLR 237–9; ALR 747–8 per Gummow J, Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606; [1999] HCA 36 at [9]–[10] per Gleeson CJ, at [25]–[27] per Gaudron J, at [70]–[83] and [93] per McHugh J, at [245]–[247], [255] and [280]–[287] per Kirby J, at [330]–[335] per Hayne J, at [389], [398]–[400] and [406] per Callinan J; Sullivan v Moody (2001) 207 CLR 562; 183 ALR 404; 28 Fam LR 104; [2001] HCA 59 at [43]–[53] per Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; 194 ALR 337; [2002] HCA 54 at [99] per McHugh J, at [234]–[236] per Kirby J; and Stuart v Kirkland-Veenstra (2009) 237 CLR 215; 254 ALR 432; [2009] HCA 15 at [132] per Crennan and Kiefel JJ.

206 Her Honour described Stavar as an exemplar of the multi-factorial approach to novel duties. She referred (at [314]) to the statements of Allsop P at [100] as follows:

[the current approach] recognises what has been said to be the use of foreseeability at a higher level of generality and the involvement of normative considerations of judgment and policy. This approach requires not only an assessment of foreseeability, but also attention to such considerations as control, vulnerability, assumption of responsibility and nearness or proximity.

There followed in Carey a quotation from [102] of Stavar, which I have set out above. Kenny J then quoted from [106] of Stavar to the effect that, in a novel area:—

… reasonable foreseeability of harm is inadequate alone to found a conclusion of duty. Close analysis of the facts and a consideration of these kinds of factors will assist in a reasoned evaluative decision whether to impute a duty. Whilst simple formulae such as “proximity” or “fairness” do not encapsulate the task, they fall within it as part of the evaluative judgment of the appropriateness of legal imputation of responsibility.

207 Kenny J stated, by reference to Makawe and Hoffman, that the salient factors listed by Allsop P were not exhaustive. It is not necessary to make findings in relation to each factor. Rather, as Basten JA said at [31] of Hoffman, the features provide a “valuable checklist” of the kinds of factors that can be of assistance. “Each involves considerations of varying weight; some will be entirely irrelevant.” It is necessary to “focus upon the considerations which are relevant in the circumstances of the particular case.”

208 The Minister’s submissions drew upon Stavar and discussed certain of the “salient features.” The submissions were predicated on two factors being of especial relevance: the consistency of the putative duty with the statutory scheme (see, e.g., [50] of the written submissions), and policy considerations (see, e.g., [52]). I agree that those factors are of particular significance in this case. The submission is consistent with authority concerning the imposition of duties of care in connection with the exercise of statutory power.

209 The applicant emphasised assumption of responsibility by the Minister, the degree of control exercised by the Minister, and the applicant’s vulnerability. The cases concerning the exercise of statutory power also identify that that the presence of those relational features is relevant in determining whether a duty of care exists. I turn now to discuss those cases.