Duty and standard of care question (1 Viewer)

[Suvat]

What are the standard tests in establishing whether there exists a duty of care and the standard of care expected in an action in negligence?

If no standard tests exist then what principles are generally used by australian courts to determine whether duty/standard of care exists?

Cheers

 

[MoonlightSonata]

What are the standard tests in establishing whether there exists a duty of care and the standard of care expected in an action in negligence?

If no standard tests exist then what principles are generally used by australian courts to determine whether duty/standard of care exists?

Cheers

If it falls into the relevant category, eg. nervous shock, pure economic loss, occupier/invitee, etc

the old 'proximity' tests aren't good law in Australia anymore

if it doesn't fit an existing category, you argue by analogy to make a new one

 

[Suvat]

that's mchugh's 'incremental approach' isn't it?

if that is indeed the currently prevailing test then we're back to pre donoghue v stevenson times...

 

[golfstick]

Suvat, because you're a smart guy I know you're searching for something more than the standard foreseeability/proximity crap (then as McHugh mentioned in Perre v Apand, the incremental thing you mentioned)

when you work it out, let me know

because as it stands I don't know where you're trying to go with this

What's wrong with being in Donoghue v Stevenson times? (duty is only one element, after all)

 

[Suvat]

it's amazing how you come to understand everything AFTER the exams... *sobz*

Anyway, pre donoghue v stevenson times, one party did not owe another a duty of care unless their was a contract between the parties or if a previous case held that a duty of care existed in such a relationship

however, d v s held that as long as there was reasonable forseeability and proximity, a DOC can arise in virtually ANY relationship

then there comes a string of cases which rejects the proximity principle as a condition for the existance of a DOC and tries to come up with a universal test to see if a DOC existed and they all failed miserably (ok, some of them had some merits)

finally in perre v apand mchugh decided to give up looking for a universal test to apply to novel situations and instead devised an incremental approach, where a DOC exists if the relationship between plaintiff and defendant fits into a 'category' which courts previously decided that a DOC existed or if not, whether a logical 'incremental development' of an existing category would include the novel situation in question and whether such a development should be permitted, taking in consideration various factors.

If I remember correctly, the civil liability legislation reflects mchugh's approach i.e. we're back to pre d v s times