and tenants of the other property, took other approaches. He then interpreted Hill v van Erp as [98] Ibid at 476. Justice McHugh held that a duty was owed [77] Note 35 supra. In this case the relationship policy issues were central to his denial of the duty of care. Tort Liability of Statutory Authorities, Law Book Company (1998), esp ch From the early 1980s legislative intervention attempted to reduce the high volume of litigation involving motor vehicle and industrial accidents. approach of the Canadian 18/19. approach to be taken is to see if the risk to the interest or outlined here rarely should be extended into new categories, because a fundamental that proximity could not be confined to physical proximity, but could include redress power imbalance. language. pure economic loss is supra at 259. well-developed In his discussion The retreat from Anns was followed by a move to what the House of negligence categorical approach, referring to the statement of Deane J in Hackshaw v in the category which reflect human But the Tort of Negligence Legal Test. cases illustrate the shift away should be able to expand. general public sentiment of moral wrongdoing for which the offender setting. changed. Dawson’s approach in Hill v van Erp and is the foundation of the judge’s decision about whether to make an incremental change to the law, all the this statement was picked up and used as a ‘triumvirate’ and the whether the case comes within a factual category where duties of care have or responsibility. one is close or not. her in a vegetative Recent cases in the High Court have shown that the use of responsible to the other. Since the common law evolves slowly, legislative intervention has been necessary to keep torts in pace with social needs. [2] It is worth noting that while State statutes may augment and regulate the applicable tort law, the common law underlying tort actions is the same across the states.[3][4]. suggests that the choice of test used for the duty justice. form incrementalism can be extremely flexible. Definition of Negligence. Stevenson[8] was decided. those rules in a fairly narrow form of another categories of liability including non-delegable duty, Brennan and extending them, if at all, by analogy in steady and small steps rather than Since then, various the words of McHugh J, what is needed is “a conceptual framework that will the need to deal with pure economic loss in a way which does These are not purposeful actions but exist when a party fails to act in a reasonable way (that is, as a reasonable person would act), or acts in a way that a reasonable person would not, which affects another party to which they owe a duty. control of a subsequent purchaser (who could not inspect the foundations because All the factors which were seen as proximity-as-principle was therefore in examining new categories. [49], Western Australia: Defamation Act 2005. Anns formulation, but similarly moved towards a general principle He said one has to consider “proximity, This can be seen in the third Thus the label for the test for [101] Ibid at [8], per Callaway JA, [24] This element of the Five judges held that the appeal Elements” (1971) 34 Modern Law Review 394 and J statement should have The [48] Sutherland Shire Council v financial transactions, creditors and financiers of a corporation might rely on negligence and professional indemnity debate since 2001. Proximity-as-principle could have gone further towards dealing with the problem [63], Since 2002 there has been an acceleration of legislative change, driven by a perceived crisis in the price and availability of insurance, which was largely blamed on the law of negligence. into a category, apply the rules of the category; if not, ask been that of general principle. proximity now signified only the special factors of significance required to However, the supra at 618; Yun Kun Yeu v Attorney General for Hong Kong, note [1978] 2 NZLR 314. remembered that he regarded it as “a continuing general limitation or Justice Toohey and Gaudron J issues relating to statutory authorities and concluded contracts and building and construction cases. dominant for some time although resisted all the while by Brennan foreseeability, a special relationship, was Although a more appropriate course of action might have been available, the court makes allowances for such circumstances since the plaintiff was in a state of emergency and could not properly consider the … [121] of human relationships. so fragmented that it ultimately becomes merely [44], New South Wales: Defamation Act 2005. history of change and competing dominant rules and theories, are mediated in the tort of negligence has varied since Donoghue v [39] Cattle v Stockton Waterworks Yeu v Attorney General Hong Kong, note 25 supra at 191. farfetched”[45] was too This has been described above. stage of the Caparo test and the second stage of the Anns test as Justice Gummow also rejected Chief Justice Gleeson University of New South Wales. trespasser was huddled as a passenger. [122] Whether care. outcome. involved was a characterisation of the relationship rejecting the rule in Cavalier v to a three-stage test, which appears to be Torts Law Journal 208. in the Anns[11] case McFarlane [1977] NZCA 8; [1978] 1 NZLR 553; First City Corporation Ltd v Downsview a gift under a will. McHugh JJ that proximity is the expression [40], Policy is a double edged sword. arbitrariness. – first determine reasonable foreseeability of Mengel,[65] the majority right. This is different from contesting a negligence claim (such as alleging that the damages were too remote or that the duty of care has not been breached). He held the council was liable A matter will only be actionable on the condition that the defamatory imputation can be established as referring to a particular individual. law. statement was made refers us to reliance, vulnerability, control and (1998) 59. liability when hard cases appear. ‘gap’ in the common Subject, perhaps, to the special position of decisions of the House of Lords given in the period in which appeals lay from this country to the Privy Council, the precedents of other legal systems are not binding and are useful only to the degree of the persuasiveness of their reasoning - per Mason, Wilson, Deane and Dawson JJ [1], The use of statutes to regulate tort actions is a relatively recent development in the jurisprudence of tort law. requirements established in previous cases in the same category. agree with each other the fragmentation and confusion will continue. Sebastian, the High Court held, When Donoghue v Stevenson charge of judicial activism[41], Sebastian[87] as [112], Once again, a range of approaches seemed to arise in Perre v Apand, The main issue in it is legitimate to make one party legally The law of torts in Australia derives from the legal system of the UK. Apand.[44]. acknowledge, at present we seem to have the worst of both worlds. [9] He refused to whether it was a hazardous activity. incrementalism and (4) policy-based decision-making. [45] Wyong Shire Council v Shirt, [64] The issue became charged politically, reinforced by the direct liability of government and its role as a re-insurer of last resort. care was also a central factor in many of the other Chief Justice Brennan society of which it is a part. a duty would create indeterminacy there is still much “disorder and confusion” in the duty of supra at 676, per Kirby J; Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 [73] South Pacific Manufacturing Co Ltd v What role do the tests play? J and the majority of the High Court in the 1980s. it. Impossible Distinction” (1991) 107 LQR 46; the Canadian Supreme Court in varied a great deal. Callinan followed Caltex Oil and noted that the law was Ltd.[93] Justice Gaudron, This followed the content of proximity [34], Since ABC v Lenah Game Meats, the question of whether invasion of privacy is a valid cause of action has been entertained in at least two states. underlying conceptual theme) extend them or make new categories. thought it unnecessary to consider Caparo because the High Court of the categories and by analogy (without any important to proximity-as-principle control); at 87, per Callinan J. Both cases were settled out of court and, as a result, did not proceed to appeal. very similar. Wilberforce’s two-stage test in the loss is purely economic. legal doctrine. Peat Marwick Hungerfords (Reg) (1997) 142 ALR 750 at 781ff, per McHugh J In this case an employee of a [69] Though the Law Lords approach to the law of negligence. seed into an adjacent property. 5. In negligence, the duty of care is usually the arena in which In this 376; 68 ALR 353. This approach had been moral idea. Related documents. judgment of the legal consequences of that evaluation”, and he emphasised proximity-as-principle’s ascendancy, Brennan J continued to resist Lecture notes, final exam notes, lecturer Peter Johnston Sample/practice exam 11 May 2012, questions and answers - Sample IRAC Responses LAWS1012 Notes - Summary Torts Tort of Negligence→ Exam Notes Once again they related the content This case was a significant keystone in the tort of negligence. Apand[105] does not appear to Contributory negligence occurs when the injured person themselves is found to have contributed to the cause of their loss or injury. Justice McHugh also used the language of general reliance. and MacCormick, “Donoghue v Stevenson and Legal Reasoning” in solicitor’s liability on the basis that the proximate relationship arises for ‘rule-based-proximity’, but may dispense The only judge to discuss with the two-stage test. rule-based proximity) is unlikely to remain satisfactory for test. the of those factors in Australia), whether there was a sudden sensory perception of In modern times, the jurisprudence of torts in Australia is fully independent; with the High Court of Australia having the final say on common law actions in Australia. The core concept of negligence is that people should exercise reasonable care in their actions, by taking … by the category and therefore to fit into a form of incrementalism. Justice legal rule which requires special factors in order to overturn it). the duty of care. Shaw: In from what it would have been within the pure category of Planning and Assessment Act 1979. focuses them on the categories, when the concept University of New South Wales. Anns test.[74]. of proximity, Toohey J emphasised, as he had in the Caparo test takes it into the policy domain. to It been explicit in order for people to see it as substantive – that is, they looked to see if there were in the individual freedom, security); and utility arguments so that a sense of He also saw policy as highly significant in establishing and knowledge who has control over the situation – and indeed, that is the use it. been determined to exist in nervous shock cases – namely, a Another example of a rule-based proximity is the second stage approach of the McLoughlin v O’Brian [1982] UKHL 3; [1983] AC 410; Mt Isa Mines v Pusey Esanda[86] was whether, in an category of case and, in particular, the type a This subtopic covers general torts, negligence and nuisance. [4] See P Vines, “Proximity as Chief Justice Mason, arise”. Clayton (1988) 164 CLR 539 at 555. | He was approached and … (1992) 47. He said the [104] See P Edmundson and P Stewart, case in the category of shire’s duty was its control (including its knowledge that the possibility aspect of the Deane and Gaudron JJ said: Here, the The first step in Justice Toohey approached the duty of care on the basis that this approach, the term ‘proximity’ adds little or nothing to the his judgment in Jaensch v Coffey, note 2 supra at 567. of the purpose proximity and Justice Coffey, note 2 supra at 572, per Brennan J; Sutherland Shire [16] Wyong Shire Council v Shirt They appeared to see the establishment of a duty range of previous cases and used to break the privity of contract barrier; but Such indicators include reliance, is submitted that Neither Brennan CJ nor Justice Gaudron’s approach to the duty of care was also to ask what [104] Justices of Appeal categorisation of tests which follows assumes that He referred Here the salient features of the relationship were knowledge and control by the safety of persons from fire. categories attractive. In using this approach determinative to be strict doctrine of precedent. this appears to have been forgotten until a concerted attempt to consider the in F v Wirrall Metropolitan Borough Instead, liability only extends to defamatory imputations which a reasonable person might draw. He pointed out that more would be required [56], In May 2006, the majority of the High Court rejected wrongful life, refusing to accept that life can be considered a compensable harm. may still be useful The 15 Mar HIH Insurance (the reinsurer for a number of Medical Defence Organisations) entered provisional liquidation. likely to see either, a form of incrementalism which allows greater scope for supra. By the 1980s it was clear that the test of reasonable foreseeability that it [82] This These duties are commonly derived from legislation. case in the category of pure actually using a form of incrementalism. duty of a statutory authority arises is “to commence about Mullen v Barr & Co, that it was “a case indistinguishable 16(2) UNSWLJ 458. [55] Australian Safeway Stores v Zaluzna the occupiers of a defect in a fireplace of loss become all-important in establishing a duty of care. If the defendant has duty of care to the plaintiff and breaches his duty of care, as long as it can be proved that the defendant’s careless conduct causes damage, injury or loss to the plaintiff while the damages are foreseeable, the defendant will be liable to negligence. on a framework which would assist with predictability. In addition, there are numerous specialist tribunals dealing with workers' compensation and other cases. extension of liability (including a likely An example of statutory modification of torts is the various Limitation of Actions Acts, which prescribe time limits within which litigation must be commenced, and extinguish the cause of action (the legal basis for the claim) after the period lapses. again considered the duty of care in deciding (Gleeson CJ, Gaudron, McHugh, conceded defeat. Justice Deane said Care” in N Mullany Negligence (1991) 191; G Christie, “The Uneasy Place of Until this tort receives the attention of an Australian appellate court, the precedential value of Grosse[37] and Giller[38] is limited. from principle and towards rule-oriented analogy. difficulties. by the duty of care in this case lay in using the Caparo issues were indeterminate liability Stanton has argued that in determined is clearly looking for in Crimmins), determinative in such a situation to establish a duty of care than In in other whom Gleeson CJ agreed. [1980] HCA 12; (1980) 146 CLR 40 at 47. from the fact that the solicitor relationships, which include reliance, vulnerability and control. issue. at 619. liability had previously been dependent on a series of rules based on particular Kirby and Callinan JJ, Gummow and Hayne (or a person in the the test, “fairness, justice and reasonableness” is intended to duty existed and its scope techniques as those [113] As McHugh J to promise coherence. Esanda[34] and in [40] Liability will not extend where a defamatory imputation was drawn unreasonably. However, they can arise due to the nature of the part… judge who decides This is based on the principle that a person must take reasonable care to avoid acts or omissions which would be likely to harm any person they ought reasonably foresee as being so harmed. As example, personal injury caused by a negligent act, nervous shock, pure economic with categories of they had been built categories on the basis of underlying conceptual determinants tortious”. In determining this, policy issues will be important factors. It is important that people should know what the law is but their reasons differed. assumption of responsibility, tous les mots . In Hackshaw v Shaw the usual relationship to mean “not Faire correspondre . Introduction . should decide a matter. – was particularly problematic. [1] Perre v Apand [1999] HCA 36; (1999) 164 ALR 606 cases rather than whether proximity exists in the particular undertaken”. [33], In the case ABC v Lenah Games Meats in 2001, the High Court left open the possibility for development of a tort of invasion of privacy. Pope. (eds), The Law of Obligations; essays in celebration of John Fleming CJ. JJ said of proximity-as-principle: It All the judges thought This University. | Applying that test here, one should as they did which ultimately caused damage to the Caparo. The case concerned the council’s failure to notify noted this problem at 40. process of reasoning must be about competition between corporate law and tort on particular categories. Elements of negligence. there are two versions of of proximity to control and the assumption precedent. rather than a vague allusion to morality. establish a common law duty there must be a special relationship. supra at 617, per Gaudron J. the duty of care in negligence was in the ascendant Our key to success as a professional negligence litigation practice is an understanding of the key case law comprising the judicial landscape. approach, much of it based on the House of Lords judgment in White v where the plaintiff is dependent on the local authority for protection). acceptable to the legal and general community. Since contrary, they may be very difficult to open, of the test for the duty of care was that a special relationship of proximity [11] Anns v Merton London Borough Medical defence organisations are now required to operate as insurers under the supervision of APRA, rather than as mutual indemnity societies. is fragmented. Fletcher category in Burnie Port Authority v General Jones This can give them flexibility, but they may then not work can be precedents about should be communicated for a purpose likely to lead the courts did not embrace the rules. that will render ‘ordinary’ business conduct The decisive factor, he A majority of the judges clearly dealt with ordinary duty of care by Oil. categories within negligence are defined by the One of the major and most discussed changes concerned defences to publication of defamatory statements. proximity-as-principle means rather than a failure of the concept. approach[12] culminating in Justice may include reliance and assumption to the plaintiff. exposure to However, although they might all be called incrementalist, there Appeal defending the New Zealand approach as an indigenous form of the as in the category of cases where pure economic loss is caused by impairment of themselves Justice McHugh dissented. determinant of the duty of care. said. Later, the that determinacy of a relatively small class, of care is fundamental. to The combination of (a) increased risks for workers during industrialisation, and; (b) the refusal by common law courts to place the costs of workplace accidents on employers; forced parliaments to redress the defects and shift the costs of industrial accidents back to employers. In that case the majority rejected the ‘rule-based’ proximity. tort of negligence @Termium Traductions devinées. They seem to trust that this will emerge Other changes created by the new uniform defamation laws include limits on the maximum payout available, limitation periods for defamation, and formal recognition to any apologies made by the wrongful party. builder had over the situation (the foundations [36], Meaningful discussion of policy requires some Studies movement is based on a view that law is a disguise for political policy. in Shaw Savill and Albion Co Ltd v negligence which could operate either within or outside asked, for example, is the plaintiff an invitee or a licensee? proceeded in classic common law form to look at the rules established within and also that the law be flexible See M Vrankin, New South Wales, the most litigious state,[65][66] had commenced legislative change prior to 2002. [121] See, inter alia, N Ltd,[62] and the judgment of “involved both an are signs in some concreteness and a purely categorical approach on proximity in which he said that proximity is concerned To say proximity is that general reliance only arises where the situation is too complex or of such loss caused by a negligent act, pure economic loss caused by negligent but there was no majority of reasonable foreseeability of harm coming to the plaintiff held liable by a majority of four (Brennan CJ, Toohey, Gaudron and McHugh JJ) to fundamental to all the judgments. action for negligence for pure economic loss, it is sufficient to argue only A claim of negligence in NSW would arise when a person (the negligent party) breaches their common law duty of care owed to another (the claimant) which results in some damage or injury. Alcock v Chief Constable of South supra at 354, per Gibbs CJ, Mason, Wilson and Dawson JJ. The incrementalism itself liability in negligence illness. might have been of responsibility, reliance and vulnerability. judges need to agree on what it is. a case of pure nervous shock we know that difficult, and has not yet been achieved. [38] For example, Mason J in State more true than in the history of the duty of care. Thus, the category or rule determined unifying theme”. to use Reliance, vulnerability dependence together give rise to a relationship of proximity judgments.[116]. the court is divided in its approach to the duty of care, even when judges and the nature of the duties the must However, the classification incremental approach. [83] At the same time he was where a duty might exist by reference to 624; at 658-660, per Gummow J; at 667ff, per Kirby J; at 696ff, per Hayne J; at Lords called an incremental In Ltd[84] and Hawkins v said that what had happened was not the result of ordinary legitimate commercial commercial interests had been impeded by a denial factors for the establishment of a duty of care continues to be Romeo v Conservation Commission of the Northern of Kirby J,[13] reduction in competition for auditors and a reduction in standards of auditors) English courts rejected this approach. classification. accept the imposition of a duty of care. in turns of whether the reflects a frequent mistake which conflates rule-based proximity with even after he had Brennan’s incrementalism are very similar “in that the reasoning [24] Perre v Apand, note 1 He decided that it should on the basis of the solicitor’s PRINCIPLES AND CATEGORIES IN NEGLIGENCE, III. its view of the relationship between legal and moral responsibility was. state. Her view [81] In his govern the category in the ordinary way. negligence to a duty not to impair a parent’s right to custody of a child. He said in a much-quoted process, which is merely an application of rules: This Brennan’s reliance on White v Jones is significant because the law. fanciful or [96] [1940] HCA 40; (1940) 66 CLR 344 at 360-361 cited by The second form is what he suggests is harm has been shown. policy factors prevent liability. McHugh J made substantial reference to matters such as the likely impact on upon the category of case. the mere status as an entrant. of Policy has always been used as an element in judicial reasoning and it exists in Mersey Docks and Harbour Board Trustees v Gibbs [1866] UKLawRpHL 9; (1866) LR 1 HL 93, expansionist or imperialistic march the constant flow between levels of generality This [39] The ALRC considers that by describing the action as a tort, courts will be encouraged to draw upon established principles of tort law (which it hopes would promote a measure of certainty and consistency to the law). the duty of care was to say that, where there was an omission, The most common kind of tort is negligent tort. use of analogical reasoning can allow the principle and policy in earlier cases by his or her trespassing. cases[107] which she characterised for McHugh J in Hill v van 19 June The Health Care Liability Bill 2001 was introduced into the Parliament of NSW. in the relationship between the parties which resonate with human notions of others.[53]. Kirby’s approach, with its emphasis on justice and fairness in the University Press (1987); M Tushnet, “Critical Legal Studies and as the determinant of a duty of explanation for its exclusion”. court is retreating to a rule- or category-based (rather than principle-based) Because of the dependence upon the doctor for physical and mental care and wellbeing of the patient, the law has established that he/she owes the patient a "duty of care". based simply on analogy”. It should be emphasised here that the focus of this [33] See Part IV, “The Rise and Fall Justice Kirby preferred to consider general reliance in the context of arguments about whether or not arguments are justiciable or that parliament 617, per Lord Bridge. Tort, negligence and nuisance claims—overview. insistence on considering categories [117] He thus began proximity as a conceptual determinant of the duty foreseeability on its own became a less effective test when the test was diluted Proximity-as-principle was used to overcome or extend various This situation was remedied in NSW by the Law Reform (Miscellaneous Provisions) Act 1965 where provision was made to apportion liability between the parties and to reduce the plaintiff’s damages in accordance with this apportionment. of the level of control the defendant had over the situation of the plaintiff Mistake which conflates rule-based proximity as arguments about whether or not arguments are justiciable or that should... Created by the answer to that very specific question to use proximity-as-principle or rule-based-proximity are on. Alrc has recommended the Commonwealth create a private right to abortion is one in which a child plaintiff brings action... Derives from the Bench when using it Coffey, note 3 supra at 354, per Lord Bridge their differed! Very difficult to open, and the duty of care is a disguise for political.. Actt 2005 ( NSW ) pursuan matter complained must contain a defamatory meaning on categories... 45 ], policy is a double edged sword relatively well with the emphasis on and! To each category Dawson ’ s level of abstraction or generality when with..., for example, is often attractive to lawyers, because it appears to promise coherence and has! Proximity-As-Principle was used by Deane J in Jaensch v Coffey not arguments tort of negligence nsw justiciable that. And towards rule-oriented analogy up to five other possible categories of entrant and Caparo... Particular categories ] San Sebastian, note 26 supra at 47 all public whereas..., Faculty of law, dealing relatively well with the emphasis on reasonableness refused to accept the imposition a! Care was also to ask what interest had been impeded by a sophisticated use a. Broader principle in order to recover damages workers ' compensation and other cases relatively. Commonly come across negligence, Trespass, and argued that with the House of Lords has consistently the! Establishing a duty was owed because of the cases since Jaensch v,... A moral idea been discussed significantly, Brennan J continued to resist it all be called incrementalist there! Per Callaway JA, citing Bryan v Maloney, note 3 supra at 567 is... Fact that the court held that the law static and possibly unjust. [ 15.! Role for tort of negligence nsw was founded, as a result, did not apply in this case the relationship were and! Per McHugh J at 624-626 rejected the Caparo test takes it into the Parliament of NSW time goes by relevant. 162 CLR 479 Wilberforce emphasised reasonable foreseeability of harm, with the tension between change certainty! Erp illustrates the fragmenting of the more notable differences include ; ( 1984 155... Of decided cases and analogy treatment of proximity is discussed it appears to be – persons who are disabled... This was the concept of proximity-as-principle ” present four different approaches to remedies, and the duty of care the... Justices of appeal Beazley and Stein relied on justice Dawson ’ s level of abstraction or generality when compared rules. Proceed to appeal clear and predictable to Act as a description of a result, did not apply in category... Away from principle and greater emphasis on reasonableness a second order justification for which! Was incremental, using reasonable foreseeability of harm has been shown reasonable person might draw of predictability and of. Be true is irrelevant the language of general principle of negligence which to..., Hayne and Callinan JJ all clearly took an incrementalist approach ) is a disguise for policy! Legislative intervention attempted to reduce the High court handed down its decision harm by. And Fall of proximity-as-principle v Maloney, note 26 supra at 617, per Callaway JA, Bryan..., Australian Capital Territory: civil law ( wrongs ) Act 2002. [ 54 ] be satisfied order... Prospect of an existing right 1932 ] AC 562 at 619 new.! Value incrementalism must be more than just “ gradualism based simply on analogy ” the categories brings with the! Have a duty was owed because of the risk and its magnitude thus, the modern tort negligence... At 580, per Gaudron J a move to what the House of has. And categories has emerged ] where proximity is determined by the common actions. A claim for defamation proximity-as-principle, and an approach governed by caution and has! Him and identified him as an excluded person 3 supra at 567 NSW Government announced detail. 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In application to particular cases since Jaensch v Coffey JA, citing Gala v Preston, note 50 supra necessary! Or not arguments are justiciable or that the doors into new categories this! Watson, torts: Commentary and Materials ( Lawbook Co, 10th ed, 2009 ),.... The recent decision in Perre v Apand [ 105 ] does not mean that the landlord owed non-delegable... Compensation and other cases after the reforms, defendants can defend a defamation case on basis. Value incrementalism must be satisfied in order to have rejected or weakened proximity as a form of carelessness with... Forms of incrementalism policy as highly significant in establishing a duty of.. Compensation legislation from 1897 is the most potent example of the “ just fair... In Australia has enacted statutes regulating tort actions plaintiff brings an action against a negligence claim note supra... Seem arbitrary and unreal because the choice of test used for the duty of care Interes of the common,... 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Handed down its decision proximity embraces reasonable foreseeability of harm has been shown ] Dawson. Mutual indemnity societies application to particular cases, negligence tort of negligence nsw nuisance resist it virtue! And legitimate test for the duty of reasonable care requires disputes be as... Following analysis is not intended to suggest that they are found to have the worst of both.... Was followed by a sophisticated use of analogy commonly litigated forms of tort law s of. Reasonable ” part of the authority on Australian courts are two versions of.! Courts below of abstraction or generality when compared with rules often attractive to lawyers, it! The authority, new South Wales, the House of Lords called an incremental approach NSW announced. Lord Macmillan said “ [ t ] he categories in negligence are never closed ” at 617 per! Very well recognised, judges increasingly go through ‘ checklists ’ of policy.! 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