Duty and foreseeability

Vincent v Woolworths Ltd [2016] NSWCA 40

Macfarlan JA

28 In considering whether a duty of care existed, it is appropriate to consider reasonable foreseeability, a concept fundamental to the existence of a duty of care, at “a higher level of abstraction” than at the subsequent stages of breach of duty and remoteness of damage (Sydney Water Corporation v Turano [2009] HCA 42; 239 CLR 51 at [45]). The duty for which Woolworths contends suffers from undue specificity and, by referring to the precise manner in which the accident occurred, draws on hindsight. This is impermissible in considering duty, as well as breach (as to the latter see Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 at [65]).