THE PALACE OF JUSTICE CIVIL APPEAL NO. P-02-2074-2011 ...

This is, indeed, a bold attempt by Lord Wilberforce’s to refine the
neighbour principle to enable it to be universally applied to ever new
and more far-reaching factual contexts. The two-stage test as
advocated was applied by Lord Roskill subsequently in the House of
Lords decision in Junior Books Ltd v Veitchi Ltd [1983] 1 AC 520.
However, in 1985 the High Court of Australia declined to apply Lord
Wilberforce’s two-stage test in Sutherland Shire Council v
Heymann [1985] 60 ALR 1, 43. Brennan J criticized the possibilities
for a ‘massive extension of a prima facie duty of care’ which Ann v
Merton appeared to create. Instead, Brennan J advocated for an
incrementalist approach to novel categories of negligence that were
to be developed ‘by analogy with established categories’. The learned
Judge said (at p. 44):
I am unable to accept that approach. It is preferable, in my view, that the
law should develop novel categories of negligence incrementally and by
analogy with established categories, rather than by massive extension of a
prima facie duty of care restrained only by indefinable ‘considerations
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