LAWS1114 Lecture 1

Week 1: Negligence: An Introduction to Problem Areas

  • Open-book examination
  • Psychiatric harm will not be covered in the exam
  • CLA (NSW) and CLA (Qld) are generally similar, but Queensland one does not modify psychiatric harm - pure common law applies here
  • Outline will be published a week in advance (no course learning guide)
  • Course will focus on ‘problem areas’ of negligence, particularly Duty of Care
  • Library Skills exercise – public body liability is NOT an issue
  • Print a copy of the Queensland Defamation Act (2005) at some point


  • Psychiatric harm in negligence (eg. Parent watches their child be run over and develops a psychiatric illness (depression etc.). Parent sues negligent driver in respect of their own psychiatric harm)
  • Essay: Two parts (each worth 15 marks)

If the circumstances of the train derailment and subsequent rescue in Sheehan v SRA; Wicks v SRA [2009] NSWCA 261 (31 August 2009) and Wicks v State Rail Authority of New South Wales; Sheehan v State Rail Authority of New South Wales [2010] HCA 22 (16 June 2010) had occurred in Queensland on 1 July 2010, determine whether, in your opinion, Queensland Rail would have owed the plaintiff police officers a duty of care in negligence on the basis of:

(a) the applicable law in Queensland; and
(b) the recommendations contained in Chapter 9 of the Review of the Law of Negligence Final Report (September 2002) (the IPP Report).

Essay pointers

  • Word limit: 2,000 words
  • Size 12 font and 1.5 or 2.0 line spacing


  • You do not owe a duty to save a kid falling into a pond
  • If you created the risk and the child suffers harm, you do owe a duty of care
  • General proposition: you do not owe a duty to take a positive step to save someone
  • This is different for public bodies (city councils), schools etc.
  • Qld CLA does not codify Psychiatric Harm - governed by common law

Lord Atkin’s neighbour principle

  • ‘Ought reasonably to have them in contemplation’ is often referring to this principle
  • Still considered, at least at the back of the judge’s mind

The ‘two stage’ Anns test

  • Is there a sufficient relationship of proximity such that, ‘in the reasonable contemplation of the former, carelessness on his part’, a prima facie duty of care arises
  • Then ‘consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed’
  • Would significantly expand the scope of duty of care
  • Not working out from the beginning whether a duty should be imposed - first assumed that there is a duty owed, then figure out if it should not be owed
  • Was very general and broad, and put the onus on the defendant to disprove duty rather than the plaintiff to prove it
  • It has since been rejected


  • Initially proposed by Deane J Jaensch v Coffey (1983) 155 CLR 549, 584-5
  • Was designed to deal with the “immediate aftermath”, when the wife of an injured officer suffered psychiatric harm on seeing her injured husband for the first time
  • Wasn’t purely temporal, could also be causal, physical, or circumstantial
  • Brennan J felt it was really only used to justify findings, not to make them
  • Rejected by the High Court in Perre v Apand

Incrementalism and analogy

  • the idea of building up duty relationships bit by bit, comparing each case to the ones that came before it
  • Brennan J was critical of relying on Ann’s or Proximity

The Caparo ‘three stage’ approach

  • Initially proposed by Lord Bridge in Caparo Industries Plc v Dickman [1990] 2 AC 605, 617-8
  • Foreseeability
  • Proximity or neighbourhood
  • Fair, just and reasonable
  • Even Lord Bridge was critical of it – particularly the idea of exactly what ‘fair, just, and reasonable’ means
  • Championed by Kirby extensively, largely ignored by the rest of the high court (never really accepted in Australia)

The multifactorial or salient features approach

  • Current approach used by the High Court for novel cases and/or economic loss
  • Covered in detail in Caltex v Stavar

Caltex Refineries v Stavar

  • Novel because it was considering whether a duty of care was owed by Caltex to a worker’s wife
  • Issue: Whether a major industrial user of asbestos lagging [material providing heat insulation] is liable in negligence for mesothelioma contracted by the wife of a worker who carries asbestos dust on his work clothes into his car and home over a significant period of time (ie. from 1964 until 1991)
  • On the basis of the interests of justice, the Supreme Court of New South Wales reected Clatex’s application to have the matter transferred from the Dust Diseases Tribunal of New South Wales (DDTNSW) to the Supreme Court of Queensland. The DDTNSW found for the plaintiff.
  • Considerations taken into account in the interests of justice included: (1) the imperative need for an early hearing in view of the plaintiff’s condition; (2) the relevant common law was the same in New South Wales and Queensland; and (3) transferring the matter to Queensland would take longer to hear (but this was not, in anyway whatsoever, a criticism of the Supreme Court of Queensland).

Differences between approaches taken by Allsop P and Basten JA

+++Allsop P [1] – [147]

Duty of care: [93] – [125] Allsop P concentrates on t duty of care issue in novel circumstances and identifies and applies various salient features under the multifactorial approach. His Honour provides an explanation of the current use of salient features under the multifactorial approach.

Breach of duty: [126] – [130] ‘There was a rational foundation for these conclusions of duty and breach’. [129]
(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.
NB: It has been said that vulnerability in the relevant sense is an inability to self-protect.


  • Basten JA [153] – [175]
  • Duty of Care: analyses the past attempt to identify a unifying concept of duty of care.
  • See Allsop P [101] – [107]
  • See Allsop P [104] – [105]
  • See [177] – [179]
  • Duty of care is prospective (was it reasonably foreseeable?) while the breach of duty is a retrospective and looks at the facts in light of what happened