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Assignment on Business and Corporation Law PDF

Added on - 27 Jul 2022

Research Question: The law of torts is based on a case by case development of the common law and referred to both analogy and incrementalism to an established category. The High Court of Australia has indicated reasonable foreseeability of harm is required before a duty of care will be found, in novel cases, certain salient features are to be applied. Critically examine the salient features as discussed in cases such as, not limited to, Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649, [102] (Allsop P); [2009] NSWCA 258 in creating these salient features and whether or not the impact of the salient features had in search for a general principle in establishing a duty of care. 

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Running Head: BUSINESS AND CORPORATION LAW
0
Civil Law
Tort Law
4/16/2020
Student’s Name
Tort Law
1
Tort Law is originally a common law that further been complied under statues as well. The basis
of the provisions of these legislations is also derived from common law. Here to state, that the
form of Tort law what one sees today has not been developed overnight but it came into its
present form following different cases. Under the decision of many cases, judges have set a legal
point that worked as law for subsequent cases and by the virtue of the doctrine of legal precedent
became provisions of Tort Law. This essay is focused on cases of Tort Law where some salient
features to establish a duty of care in novel relationships have been set and that further became
important provisions of this law.
Different cases have provided different salient features under Tort law, which needs to be review
and determine while imposing a duty of care to the defendant in the cases of novel relationships
as determined in the case of “Makawe Pty Limited v Randwick City Council”1by NSW court of
appeal. The key point of the case was that imposing a duty of care between the parties having no
relationship in mutual is a difficult case. This is the reason that a salient feature test is needed is
need to be applied in such cases. To discuss the background of duty of care highlighted in this
case this is to state that no duty of care found to have existed on the part of the defendant. In the
absence of a direct relationship, a salient feature test became necessary to apply. The concept of
the subjective test is not new and has also been applied in the case ofPerre v Apand Pty Ltd2. In
this case, the duty of care has been established on the part of the defendant considering the
factors such as the vulnerability of the plaintiff and the degree of control the defendant had to
avoid the harm sustained to the claimant.
“Tame v New South Wales Annetts v Australian Stations Pty Ltd”3.is another case where based
on another salient feature the duty of care was determined. In the case, the Annetts went missing
and died. When his parents saw him death they suffered from nervous shock and an issue has
arisen before the court that whether the employer of Annetts owed a duty of care to the parents or
not. In the decision of the case, the court concluded the existence of duty considering the
foreseeability of harm. It was foreseeable for a reasonable person that an individual having
ordinary fortitude would get a psychiatric injury.
1Makawe Pty Limited v Randwick City Council[2009] NSWCA 412
2Perre v Apand Pty Ltd(1999) 198 CLR 180
3Tame v New South Wales. Annetts v Australian Stations Pty Ltd.(2002) 191 ALR 449; [2002] HCA 3
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