Pleading an established duty of care

https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWCA/2026/22.html#_Ref223681247

42. In cases involving an established duty, to plead the existence and scope of the duty it commonly will be sufficient for a plaintiff simply to identify facts showing that each of the plaintiff and defendant fell within the established category involving a duty to take reasonable care to avoid an identified risk of harm (eg that each of the defendant and plaintiff was driving a motor vehicle on a public road and the plaintiff owed a duty to avoid injuring other motorists; that the plaintiff was a student attending a school run by the defendant when injury occurred, and the school owed the duty just identified). There may still be unusual cases where particular questions may arise about the scope of an established duty of care. Collins was an example in the context of the duty of drivers. T2 was, at least on one view, such a case with respect to schools. In those cases there may be a need to plead more detailed facts said to establish the duty of care. The same is true where the duty of care alleged is a novel one, in which case the pleader should identify the salient features said to give rise to the duty: note eg Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258 at [100]- [104].

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