However you can change a negative act into a positive

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However, you can change a negative act into a positive act if appropriate- i.e. failure to feed a child can be turned into starving the child. (iii) Where there is no settled law telling us whether a duty of care is owed or not: General Principles A test is required to establish whether a duty of care exists in that situation. The Plaintiff must show that they were within a class of persons or a person to whom a duty was owed. The test to prove this is: REASONABLE FORSEEABILITY (as legal standard for duty of care)
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Is it reasonably foreseeable that careless conduct of any kind on part of the Defendant may result in damage of some kind to the Defendant? General type of injury to a general class of persons o RF is the one fixed element in establishing a DoC, over the years it has been watered down and now satisfaction of RF is relatively easy although not guaranteed. The doctrine is used to remove cases where a DoC clearly does not exists, but does little to assist in determining cases where there is no clear position. o Deane J in Jaensch v Coffey:At this stage the concept of RF is broad at the duty stage. Not necessary that the precise sequence of events RD (Chapman v Hearse) o Question of fact Donoghue v Stevenson The seminal case establishing RF as a requirement for a DoC. Lord Aiken said in D v S : “You must take reasonable care to avoid acts that you can reasonably foresee might injure your neighbour” The question is who is your neighbor?. Lord Aiken continues: “Your neighbours are those people so closely and directly affected by your act that you ought reasonably to have them in mind when deciding whether to perform that Caterson v Commissioner for Railways NSW Reduction of the standard of foreseeability to “not unlikely”. Facts: Got onto train with 14 year old son at platform, train sped off with him on it Held: Reasonably foreseeable means not unlikely to occur o The Court of Appeals held that the level of stringency was “likely to injure” as per Lord Aiken. The HC overturned the ruling and as per Barwick CJ preferred the lower level of stringency of “not unlikely” this is “because …it excludes possibilities which are theoretical or unreal in all the circumstances”. o Barwick CJ follows Lord Reid in C Czarikikow Ltd v Koufos (1969) in that ‘the defendant will be liable for any type of damage which is reasonably foreseeable as liable to happen even in the most unusual case, unless the risk is suchthat a reasonable man would in the whole circumstances feel justified in neglecting it’ o It is enough to show that it was reasonably foreseeable that the Physical Harm Mental Harm Economic Loss Etc. Drivers Patrons Consumers Etc.
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defendant’s actions were not unlikely to harm the plaintiff Sulivan v Moody - The tests is watered down further to “real and not far fetched possibility”.
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