The weighing of such factors involves an ad hoc

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and importance of these salient features. The weighing of such factors involves an ad hoc response and such an approach provides no guidance or predictability as to the likely outcome of the duty issue in novel cases. Conceptually, these salient features belong to the evaluation of considerations of policy and are not anchored to legal principle. They derive from public policy and justice concerns. Kirby J in the High Court of Australia has been the most vocal critic of the “salient features” approach stating that these so called “principles” were not issues relevant to all negligence actions and it was therefore inappropriate to elevate them so that they were legal preconditions to the existence of a duty of care in negligence. They were not even essential or relevant to every case framed in negligence.12 Kirby J has rejected the “salient features” approach referring to the necessity for a general or 7 conceptual methodology, which provides the headings to which such considerations can be assigned.13 While an examination of these legal policy factors may produce a just outcome on the duty issue by weighing public interest factors against individual rights, it is at the expense of certainty and predictability. Kirby J has stated that “a cornucopia of verbal riches has been deployed to identify what, in given proceedings, these ‘salient features’ will be”.14 It might be suggested that an examination of salient features is not an approach at all but merely an unfettered discretion to prioritise factors, which subjectively appeal to
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the court as relevant in the case at hand. For instance where a finding of duty of care might potentially lead to indeterminate liability, how is such a factor to be weighed against the right of a foreseeable victim to compensation for gross negligence, particularly where the victim was vulnerable and under the control of the defendant and had no access to other means of compensation? Some support for the “salient features” approach has come from Gaudron and McHugh JJ in the High Court.15 10 (1999) 198 CLR 180 at 253,254 11 Ibid at 280,281 12 Perre v Apand Pty Ltd (1999) 198 CLR 180 at 285
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ELEMENT TWO: BREACH OF DUTY Involves a comparison of the defendant’s conduct with the ‘standard of care’ required by the duty (stage). Whenever the defendant’s conduct falls below the required standard of care, the duty is seen to be breached. TWO QUESTIONS NEED TO BE ADDRESSED (a) OBJECTIVE STANDARD OF CARE or Establish it was reasonably foreseeable that the risk of harm would have eventuated (Question of fact) (b) Did D fall within the standard of care? i. Was D a reasonable person (if in issue?) ii. The calculus of negligence: Was the defendant’s response to that risk reasonable? (s 48(2) Wrongs Act) PRELIMINARY ENQUIRIES PRECEDENT OF PAST CASES IN LAW, NOT IN FACT When determining the reasonable standard of care a court is only bound by statements of law made in previous cases, not statements of fact. In each case it is important to determine on the facts own merits, what a reasonable person would have done. The previous cases will only be
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