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P sued d and car owner 47 judges used proximity but

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The driver fell asleep killed one passenger and injured the other. P sued D and car owner. 4/7 judges used proximity but still NO DOC RULE: Policy overrides proximity Don’t want to compensate criminal as will disrupt the deterrent affect of criminal law. Dawson J: Reasonable foreseeability not sufficient on its own; proximity masks policy considerations. Dawson J: Shouldn’t be proximity but policy also not enough – need to give reasons.
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6 Sullivan v Moody (2001) (Proximity out) (Father wrongly accused of sexually abusing daughter) FACTS: 2 cases heard together. Mother thought father was abusing daughter, took her to the doctor who concluded there had been abuse. Mother didn’t lay charges but divorced him. Family court found the father innocent. The father then sued them all for shock and psychological harm. Previous case was Hillman’s Case where it was ruled no duty due to proximity. Proximity is no longer the test so looked at again. If reasonable foreseeability only test = intolerable burden on everyone to maintain duty. Reasonability not only test but proximity is definitely not the second element. Negligence shouldn’t be used to swallow up other modes of action – e.g. Hill v Van Erp (1991) (Starting to move from proximity) (Mistake signing will) FACTS: Solicitor was employed to write a will. She woman wanted to leave everything to her friend but the solicitor got the friend’s spouse to witness the will deeming it void under QLD law. No problem with indeterminacy No conflict of interest Person is negligent so there should be cause of action Finding a DOC will promote carefulness Dawson J: reasonable foreseeability not enough – something else needed. Gummo: Proximity masks policy considerations. Tame v NSW (2002) (mental harm case) (Cop recorder wrong BAC) FACTS: P was involved in a minor accident. Cop came to the scene and accidentally wrote on P’s report that she had the BAC of the other driver which was well above the limit. The mistake was rectified but P got obsessed and suffered a mental illness. HELD: No DOC. Not reasonably foreseeable/P not of normal fortitude. Gleeson CJ, Gaudron, Hayne JJ: Cop had duty to include all relevant information. If cop has to think about avoiding harm he may avoid adding all information. Conflict of duty. Gleeson CJ, Gaudron and McHugh JJ: Should run under tort of defamation not negligence. Reluctance to interfere with normal economic activity.
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Section 23: A person is not debarred from recovering damages merely because the injury complained of arose wholly or in part from mental or nervous harm . Section 67: Mental harm = psychological or psychiatric injury. (NB: Not ‘recognised’ psychological injury. PURE MENTAL HARM = Where plaintiff suffers only mental harm as a result of being endangered but not injured by D’s negligence; or as a result of seeing an accident occur to someone else.
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