The Shifting Sands of Negligence: Reasonable Reliance to Legitimate Expectation?

Abstract

Seventy years after Lord Macmillan observed in Donoghue v Stevenson that “the categories of negligence are never closed”, it is clear that the categories have not only increased exponentially, but have supplanted or encroached upon other traditional torts. Apart from its reach across the legal landscape of obligations, the content of the duty of care in negligence has also placed a heavier burden on potential defendants. For example, the duty to inform, since Rogers v Whitaker, has become an almost permanent feature in all medical negligence cases. A corollary duty to warn is also apparent in the broader context, whether it is failure to inform of the risks of, for example, diving into a shallow pool, walking along hidden cliff edges, or batting while playing cricket. An expectation has been created that the tort of negligence may be called upon in virtually any situation, and that people and organizations should be obliged to take positive steps to prevent harm. In recognition of this, the Australian government recently appointed a panel of experts to review the law of negligence and make recommendations to limit the extent of liability.