Held doc brennan reasonable foreseeability salient

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HELD: DOC Brennan: Reasonable foreseeability + salient features. Indeterminate liability – not an issue. Gummo & Gaudron: No conflict of duties. Dawson & Toohey: Beneficiary’s interests are totally dependent on the solicitor. Hawkins v Clayton Utz FACTS: Solicitor made a will and was supposed to contact the beneficiary upon death. Did not do this until 6 years later. Nephew (sole executor/beneficiary) had a fight with uncle where he was told he was out of the will. The uncle didn’t get around to it. Nephew didn’t know he was the beneficiary. HELD: DOC 3:2. Brennan: Whole purpose of will is so solicitor can put it into effect = reasonably foreseeable. Bryan v Maloney FACTS: P purchased a house from its first owner. A year later the house started to crack because the building was shoddy. No property damage – the house was always defective. Issue : Does the builder owe a DOC to subsequent buyers? HELD: DOC Majority: reasonably foreseeable . Still around time of proximity. Other salient features = Permanent structure Likely to be most significant investment in their whole life . Some similarities in the 2 relationships with the builder: Builder assumed responsibility and both purchasers relied on this. DOC already owed to first owner .
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the safety of others. If you choose to do something you have to do it with care. NON-FEASANCE = Not doing act at all (omission). Cf. 18 Woolcock Street Investments (HC 2004) FACTS: Company employed D (Engineering firm) to design and build a commercial building (warehouse and shops). Plaintiff later bought the complex and didn’t get the buildings checked for stability relying on the reputation of the builders. 2yrs later there was structural damage. Engineers only checked soil to its contracted minimum. HELD: No DOC MAJ: No rule that there will be a DOC for domestic but not for commercial. Lack of vulnerability on part of the plaintiff. o Plaintiff could have checked structure, ask tenants if there were any issues, get guarantee. On these facts P couldn’t prove a DOC was breached with initial owner (cf. Bryan ) – contracted to just do minimum checking. No proof that it was significant investment . McHUGH: Questions in Perre : o Reasonably foreseeable? o Indeterminate liability? o Unreasonable burden on autonomy of defendant? o Vulnerable plaintiffs ? MAIN ISSUE HERE. o Did they know that harm could be caused to the plaintiff? o Could another law be better ? (Contract?) MAIN ISSUE o Floodgates? o Disproportionate to blameworthiness? DUTY OF CARE (Omissions)
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MISFEASANCE = Doing an act badly (normal negligence). !! Omissions can be phrased as positive acts e.g. ‘not putting on brakes’ = ‘driving negligently’ EXCEPTIONS: DUTY TO TAKE POSITIVE ACTION Where the Defendant Contributes to the Creation of Danger Where the Defendant Has Control of the Situation 19 McKinnon v Burtatowski (1969) FACTS: The D hit a horse on the road at night time. P came behind, crashed into horse and damaged car. P sued for property damage for not moving the horse.
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