Although not a medical claim, Ibrahimi v Commonwealth of Australia [2018] NSWCA 321 is of interest for its appellate consideration of the mechanism by which a court may recognise a novel duty of care.
The mere foreseeability of harm does not produce a duty to prevent its occurrence. Recognition of a novel duty of care must follow from an analysis of the parties’ relationship informed by conclusions in earlier cases: [203].
Three initial problems arose for the recognition of a duty of care in this case.
- First, the likelihood and extent of harms suffered are not said to have been directly increased by any positive act of the Commonwealth: [206].
- Secondly, the interception operation involved choices by the defendant about the exercise, and non-exercise, of statutory and prerogative powers: [207].
- Thirdly, recognition of the duty may promote incoherence with the purpose of the Migration Act, although this issue did not need to be determined: [208].
The salient features test was the relevant test to be applied. In respect of vulnerability, there was no reliance by the group members on the defendant which would give rise to relevant vulnerability: [209], [228].
With regards to control, the degree and nature of control by a public authority over the relevant risk of harm is crucial in determining the existence of an alleged duty of care. The primary judge correctly concluded that the risk to the appellants did not arise from any conduct on the part of the defendant, and the defendant did not have control in the relevant sense: [233]-[236], [244].