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A test for whether a public authority owes a duty a care? February 9, 2016

Hammond v The State of New South Wales [2013] NSWSC 1930

Adamson J

   [51]  All parties referred me to the following six-step test identified by McHugh J in Crimmins at [93] and accepted that it was the correct test to apply to determine when the Commonwealth, States, Territories and other public bodies owe a duty of care in circumstances where it is alleged there has been a failure to exercise statutory powers:

Step 1: Was it reasonably foreseeable that an act or omission of the defendant, including a failure to exercise its statutory powers, would result in injury to the plaintiff or his or her interests? If no, then there is no duty.
Step 2: By reason of the defendant’s statutory or assumed obligations or control, did the defendant have the power to protect a specific class including the plaintiff (rather than the public at large) from a risk of harm? If no, then there is no duty.
Step 3: Was the plaintiff or were the plaintiff’s interests vulnerable in the sense that the plaintiff could not reasonably be expected to adequately safeguard himself or herself or those interests from harm? If no, then there is no duty.
Step 4: Did the defendant know, or ought the defendant to have known, of the risk of harm to the specific class including the plaintiff if it did not exercise its powers? If no, then there is no duty.
Step 5: Would such a duty impose liability with respect to the defendant’s exercise of core policy-making or quasi-legislative functions? If yes, then there is no duty.
Step 6: Are there any other supervening reasons in policy to deny the existence of a duty of care (eg, the imposition of duty is inconsistent with the statutory scheme, or the case is concerned with pure economic loss and the application of principles in that field deny the existence of a duty)? If yes, then there is no duty.

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