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Smillie suggests 1989 15 monash uni law review 303

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Smillie suggests: ((1989) 15 Monash Uni Law Review 303 ‘The Foundations of Duty of Care in Negligence’) ‘The sole utility of the proximity concept is to obscure the fact that decisions in hard cases are based on controversial value judgments by the courts, and to preserve the appearance of value-free adjudication by reference to a fundamental pre-existing legal principle.’. Criticism of proximity: uncertain, hard to predict what the outcome would be if the judges took into account policy. Parliament’s job to make laws. For: Allows the court to be flexible, change with the times, up-to-date. How much policy should we put into torts? Being upfront, say they take into account policy. Gala v Preston (1991): ( also in defences ) Attitude of the High Court to Justice Deane’s suggestion of proximity as a test. When using proximity, policy is important. Four guys went to a pub and spent the day drinking. D, was 19 yrs old, drank 40 scotches and other beverages. It was one of his mate’s ideas to steal a car and drive to QLD, so they all did. They all took turns driving; D took over and crashed the car into a tree, and killed a few of the mates in the car and injured P, a passenger. P sued the driver. Jointly engaged in illegal activity, stole a car and driving over the limit. Did the D owe a duty of care to P? D Crashed the car and P was a passenger. Is it reasonably foreseeable that if he’s driving carelessly, that he could harm a passenger? Yes. But No Duty of Care . Used 2 nd test : No proximity. Physical? Yes in car together. Circumstantial? Yes. No proximity because of policy . Held : Not possible, feasible for them to judge the standard of care and therefore no duty of care . Can’t say how they should’ve been driving, could have but didn’t want to set a standard of care, so no duty of care for D to be liable. What effect could this have on criminal law? Policy. Therefore no proximity, no duty of care. Joint criminal activity- the appropriateness and the feasibility of duty of care. Don’t want to be involved. Joint judgment four judges together taking the approach. Dawson: (example of modern approach) proximity is reasonable, need something more than reasonable foreseeability but not useful as doesn’t say what that something else is. Underlying principle is the important t thing. Condone the criminal activity by applying a civil remedy. Brennan: held not duty of care- illegal activity. Proximity has not been overruled but don’t use proximity to describe the second part of the test anymore. (e) Evaluation of Current Approach to Duty Hill v Van Erp (1997) : Hill, a solicitor, employed by an elderly lady to write her will. The old lady wants to include her friend, Van Erp into her will. Need someone to sign the will as a witness. Elderly lady gets her husband, who was also in the will, to sign. There is a law that spouse of beneficiary validating the will invalidates the will. The elderly lady died, found out it was not valid, meaning Van Erp and no one else in the will would inherit anything. Van Erp (P) sued the lawyer. She couldn’t sue under Torts Lecture Notes 3
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contract because contract was between the lawyer and the old lady. Sued for negligence. D said did not owe a duty of care to the
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