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Issue can she bring an action in negligence

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Issue: Can she bring an action in negligence? Manufacturers had contract with shop owner not plaintiff. RULE: NEIGHBOURHOOD PRINCIPLE BY LORD ATKIN (Summarising ideas in Heaven v Pender) ‘You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour…persons who are so closely affected by my act that I ought reasonable to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question.’
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- Gala v Preston = policy overrides proximity - Hill v van Erp = moving away from proximity - Sullivan v Moody = proximity no longer the test 1. Reasonable foreseeability 2. Salient features REASONABLE FORESEEABILITY Is the injury of the same general class in some way to the plaintiff or class of persons of which the plaintiff is a member, reasonably foreseeable? - Identify class of injury (plaintiff will argue broadly/defendant will argue narrowly) - Identify plaintiff as belonging to a class of people (plaintiff will argue broadly/defendant will argue narrowly) - Reasonable forseeability will usually be sufficient for cases of physical injury or damage caused by a positive act (proximity as salient feature is established) (Deane J in Sutherland Shire Council v Heyman ) 3 ELEMENTS OF DOC Chapman v Hearse (HC 1961) (3 party car crash/doctor who helped killed) FACTS: Chapman was driving negligently, flipped car and injured himself. Cherry (doctor) ran to the scene to help, Hearse sped around the corner and killed the doctor. Wife of doctor wanted to sue Hearse. Hears argued that it was actually Chapman’s fault. Procedurally brought in their party – Hearse sued Chapman. Chapman argued not reasonable foreseeable. Held Chapman did owe duty to Cherry. RULE: Do not have to foresee the exact course of events/Drivers owe duty to road users. It is reasonably foreseeable that driving negligently will cause injury to other road users. Use objective test. Caterson v Commissioner for Railways (NSW (1973) (Jumping off train) FACTS: Helping a friend load luggage onto a train so got on. Train didn’t announce departure so P had to jump off to avoid leaving his child behind on the platform. RULE: Reasonably foreseeable = not unlikely. (Barkwick J)
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Forseeable aand Vulnerable Plaintiffs 4 Wyong’s Shire Council v Shirt (1980) – See breach RULE: Reasonably foreseeable = ‘not far fetched or fanciful’. Bourhill v Young (1943) (Pregnant woman hears motorcycle accident) FACTS: Pregnant woman standing on side of tram. Overheard accident between motorcycle and tram – motorcyclist was killed. Baby was still born due to injuries from shock. RULE: Duty must be owed to the plaintiff. Motorcycle caused injury and owed a duty to the driver of the tram.
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