Duty Of Care
The duty of care and the search for certainty: Sullivan v
Moody, Cooper v Hobart, and problems in the South Pacific.
Andrew Barker
In this article, Andrew Barker, from the Faculty of Law at the University of Otago, considers two recent decisions on the duty of care in negligence: Sullivan v Moody, from the High
Court of Australia, and Cooper v Hobart, from the Supreme Court of Canada. In these decisions, the two courts have re-evaluated their approach to the duty of care in negligence, and suggested new approaches to this problem in an attempt to remove some of the uncertainty their previous decisions have created. After reviewing these decisions, the author argues that the approach to the duty of care in New Zealand, represented by the decision …show more content…
At the second stage of the Anns test, the question remains whether there are residual policy considerations outside the relationship of the parties that may negative the imposition of a duty of care. The court went on to discuss in some detail the content of each stage of this test. At the first stage, the question was what is meant by proximity, and in respect of this, the court made two general points. The first was that proximity is used to characterise the type of relationship between the parties in which a duty of care may arise. It refers to the closeness and directness of the relationship between the plaintiff and defendant. The second was how to determine whether a relationship was sufficiently proximate. In most situations, this will not present a difficulty, as the alleged duty of care will be within an existing category, or analogous to an existing category. The court offered some examples of such categories: physical injury; negligent misstatement; misfeasance in public office; a duty to warn of a danger once recognised; building negligence; and some types of relational economic loss. However, where a novel claim is involved, the Court accepted that it is pointless searching for …show more content…
That relationship could only be found in the governing statute, and on reviewing that statute, the court thought it clear that any duty owed by the Registrar was to the public as a whole rather than to individual investors. It was a duty to ensure the efficient operation of the marketplace through the balancing of a myriad of competing interests. Indeed, recognising a duty to an individual investor was likely to conflict with the duty the Registrar owed to the public. Accordingly there was no relationship of proximity between the investors and the Registrar such as would give rise to a duty of care.
While not necessary to resolve the case, the court also noted that policy reasons at the second stage of the test would have negatived the recognition of a duty of care. The power exercised by the Registrar involved the determination of questions of policy, a quasi-judical exercise of power, and discretionary decisions in an area of public policy. The decision was accordingly made within the limit of the powers conferred on the Registrar by the legislation. There was also the spectre of unlimited liability, and the adverse impact on the taxpayer if required to assume the risk in such
Moody, Cooper v Hobart, and problems in the South Pacific.
Andrew Barker
In this article, Andrew Barker, from the Faculty of Law at the University of Otago, considers two recent decisions on the duty of care in negligence: Sullivan v Moody, from the High
Court of Australia, and Cooper v Hobart, from the Supreme Court of Canada. In these decisions, the two courts have re-evaluated their approach to the duty of care in negligence, and suggested new approaches to this problem in an attempt to remove some of the uncertainty their previous decisions have created. After reviewing these decisions, the author argues that the approach to the duty of care in New Zealand, represented by the decision …show more content…
At the second stage of the Anns test, the question remains whether there are residual policy considerations outside the relationship of the parties that may negative the imposition of a duty of care. The court went on to discuss in some detail the content of each stage of this test. At the first stage, the question was what is meant by proximity, and in respect of this, the court made two general points. The first was that proximity is used to characterise the type of relationship between the parties in which a duty of care may arise. It refers to the closeness and directness of the relationship between the plaintiff and defendant. The second was how to determine whether a relationship was sufficiently proximate. In most situations, this will not present a difficulty, as the alleged duty of care will be within an existing category, or analogous to an existing category. The court offered some examples of such categories: physical injury; negligent misstatement; misfeasance in public office; a duty to warn of a danger once recognised; building negligence; and some types of relational economic loss. However, where a novel claim is involved, the Court accepted that it is pointless searching for …show more content…
That relationship could only be found in the governing statute, and on reviewing that statute, the court thought it clear that any duty owed by the Registrar was to the public as a whole rather than to individual investors. It was a duty to ensure the efficient operation of the marketplace through the balancing of a myriad of competing interests. Indeed, recognising a duty to an individual investor was likely to conflict with the duty the Registrar owed to the public. Accordingly there was no relationship of proximity between the investors and the Registrar such as would give rise to a duty of care.
While not necessary to resolve the case, the court also noted that policy reasons at the second stage of the test would have negatived the recognition of a duty of care. The power exercised by the Registrar involved the determination of questions of policy, a quasi-judical exercise of power, and discretionary decisions in an area of public policy. The decision was accordingly made within the limit of the powers conferred on the Registrar by the legislation. There was also the spectre of unlimited liability, and the adverse impact on the taxpayer if required to assume the risk in such