Negligence: duty of care 

Negligence has four elements: a duty of care, breach of that duty, causation, and damage that is not too remote. Duty is the control device — the question whether the law recognises a relationship in which the defendant must take reasonable care for this plaintiff's interests.

Start with the categories

Most cases are not novel. Duties are established for, among others:

• road users towards other road users;
• employers towards employees;
• occupiers towards entrants;
• manufacturers towards ultimate consumers;
• doctors and other professionals towards those they advise or treat;
• schools and carers towards those in their care.

Where an established category covers the facts, the duty question is short and the real argument is about breach. Identifying the category and moving on is a mark of a well-organised answer; reasoning a settled duty from first principles is not.

Novel duties: the salient features approach

Where a case does not fall within an established category, Sullivan v Moody (2001) 207 CLR 562¹ is the leading authority for how Australian courts approach the question: not by a single unifying test, but by weighing multiple salient features of the relationship between the parties — including matters such as indeterminacy of liability, vulnerability, and coherence with the parties' other legal obligations.

Australia does not use the English three-stage test of foreseeability, proximity and what is fair, just and reasonable, and it abandoned an earlier two-stage approach as well. The High Court's method is incremental and analogical: reason from the established categories, and where the case is genuinely novel, identify the salient features of the relationship and weigh them.

Recurring salient features include:

• Vulnerability — whether the plaintiff could reasonably have protected themselves against the risk. This carries a great deal of weight, particularly in economic loss.
• Control — the extent of the defendant's control over the source of the risk.
• Assumption of responsibility and known reliance — especially where advice is given.
• Knowledge of the risk and of the class of persons exposed to it.
• Indeterminacy of liability — whether a duty would expose the defendant to liability in an indeterminate amount, to an indeterminate class, for an indeterminate time.
• Coherence — whether the duty would cut across another legal relationship, a statutory scheme, or the plaintiff's own criminal conduct.
• Autonomy — whether the duty would unreasonably burden legitimate pursuit of the defendant's own interests.

No feature is decisive and there is no closed list. Say so; a list recited as if it were a statutory test misrepresents the method.

Reasonable foreseeability does the least work

In a novel category, foreseeability at the duty stage is a low threshold: a risk is foreseeable unless it is far-fetched or fanciful. It is therefore necessary but not sufficient — almost any harm is foreseeable in that undemanding sense, so a duty analysis that stops at foreseeability has not begun. Note also that foreseeability appears again at breach and at remoteness, doing different work each time; treating the three as one question is the most common structural error in negligence answers.

The paradigm case of physical injury caused by the defendant's own positive act is different. In Cullen v New South Wales [2026] HCA 19³ the joint reasons (Gageler CJ, Gordon, Steward, Gleeson, Jagot and Beech-Jones JJ) held that in such a case "the class of persons to whom the defendant owes a duty of care comprises those persons exposed to a reasonably foreseeable risk of physical harm from the defendant's action", and that the duty is "properly established at a high level of generality", leaving the relationship between the conduct and the injury to breach, causation and scope of liability. They described these as "well-established principles", and said that Sullivan v Moody and Tame v New South Wales were "not directed to the paradigm case" of reasonably foreseeable physical injury from a careless act. The police officers who intervened in a protest march owed that duty to members of the crowd and bystanders at foreseeable risk of physical injury, but the appeal failed because the duty was not breached.

Areas the categories treat specially

Pure economic loss — loss unaccompanied by physical damage to the plaintiff's person or property. A duty is not readily found, and vulnerability, known reliance and indeterminacy dominate. Negligent misstatement and defective structures are the two established lines.

Mental harm — now substantially statutory in most jurisdictions. Damages generally require a recognised psychiatric illness rather than grief or distress, and the statutes set out the circumstances the court must consider, including sudden shock, direct perception of the incident, and the closeness of the relationship. The common law survives alongside the statute, but the statutory conditions must be worked through first.

Omissions — the law imposes no general duty to act for another's benefit. A duty to act arises from the relationship, from control, or from the defendant's own creation of the risk.

Public authorities — statute governs. Most jurisdictions provide that an authority's functions must be judged by reference to the resources available to it and the broad range of its responsibilities, and confer protections for the exercise of policy or special statutory powers.

Third parties — a duty to control a third party's conduct is exceptional and requires a relationship of control or a special vulnerability.

Applying this in a problem question

1. Ask whether an established category covers the relationship. If so, state it and move to breach.
2. If the case is novel, reason by analogy from the nearest category first.
3. Identify and weigh the salient features that actually matter on the facts, rather than listing all of them.
4. Address the specific regime for economic loss, mental harm, omissions or public authorities where one applies, statute first.
5. Keep foreseeability at duty separate from foreseeability at breach and at remoteness.

One warning about how this approach is used. In Mallonland Pty Ltd v Advanta Seeds Pty Ltd [2024] HCA 25² the joint reasons quoted Sullivan v Moody at [36]: "[d]ifferent classes of case give rise to different problems in determining the existence and nature or scope, of a duty of care", and "[t]he relevant problem will then become the focus of attention". The features are not a checklist to be weighed at large — identify the problem the class of case presents, and address that.

Where the authority sits

Common law developed by the High Court, with the salient features method stated across a line of Australian cases, and with mental harm, public authority liability and several duty-limiting rules now overlaid by the civil liability statute of each jurisdiction.