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Reluctance to interfere with defendants legitimate

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- Reluctance to interfere with defendant’s legitimate economic activity : ( Tame, Moody, Perre ) - Proximity : only in very few cases that are analogous to old ones courts will consider proximity (Deane J in Heyman’s Case ). a. Physical proximity (nearness in space and time b. Circumstantial proximity (like employer or employee) c. Causal proximity (directness between particular act and the injury) d. May be policy judgements on matters of policy and degree SALIENT FEATURES AND PROXIMITY CASES 5 Gala v Preston (1991) (Policy precludes proximity) (QLD after 40 scotches) FACTS: 4 men went to the pub and drank a shite load. They stole a car and started driving to QLD. 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. 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.
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Reluctance to interfere with defendants legitimate economic...

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