Which test to be used when determining the liability of the defendant in a negligence case has caused much debate in relation to law of negligence Australia.

Common law negligence has undergone many changes in Australia in the last few decades. When it comes to duty of care in Law of negligence Australia has faced a conflict between the common law approach and the new approach known as “salient feature” approach since 90’s. The fact that Australia historically preferred the common law approach is evident in a number of cases, including Sutherland Shire council v Hyeman [1985] 157 CLR 424, Cook v Cook [1986] 162 CRL 376, and San Sebastian Pty Ltd v Minister Administering Environmental and Planning Assessment Act 1979 [1986] 162 CLR 340. It was necessary to show that there was a sufficient relationship of proximity between the plaintiff and the defendant to hold that the defendant owed a duty of care to the plaintiff. However, the suitability of proximity as the determining factor in imposing liability on a defendant began to be questioned particularly after 90’s. Esanda Finance Corparation Ltd v Peat markwick Hingerfords [1997] 188 CLR 241, Romeo v Construction Commission of the Northern Territory [1998] 192 CLR 43 and Hill v van Erp [1997] 188 CRL 159 are a few cases where the new trend is reflected. In those cases, the courts considered proximity as “a way of expressing that something more than mere foreseeability was necessary” to establish duty of care. Nevertheless, approach of the Australian courts towards the scope and applicability of duty of care was not clear and constant until the decision in the landmark care Sullivan v Moody [2001] HCA 59 finally made an attempt to settle this doctrinal chaos. In the Sullivan case, the court unanimously rejected the principle of proximity for the purpose of determining whether the defendant owed the duty of care to the plaintiff. The court stated “The formula is not proximity. Notwithstanding the centrality of that concept, for more than a century, it gives little practical guidance in determining whether a duty of care exists in cases that are not analogous to cases in which a duty has been established.“ Thus “foreseeability of harm is not sufficient to give rise to a duty of care.” The court also rejected the three stage test laid by the House of Lords in Caparo Industries Plc v Dickman [1990] 2 AC 605. The court made reference to the salient features approach as an alternative, in which case, whether the defendant owes a duty of care not should be determined considering the salient features of each case. In contrast, English courts still use the three stage test, which is the principle based approach in common law.