The Needle in the Haystack: Principle in the Duty of Care in Negligence

The question of when a duty of care in the tort of negligence is owed by one person to another is a question about relationships and responsibility as recognised by the law. It is important that people should know what the law is and also that the law be flexible enough to change in the interests of justice. In negligence, the duty of care is usually the arena in which the battle between flexibility and predictability is fought, and it is frequently the area where novel categories or hard cases are decided. This suggests that the choice of test used for the duty of care is fundamental. In the words of McHugh J, what is needed is “a conceptual framework that will promote predictability and continuity and at the same time facilitate change when it is needed”.* 1 Recent cases in the High Court show that developing such a conceptual framework is difficult, and has not yet been achieved.