There is no specific test rather a general salient

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There is no specific test rather a general Salient Features Approach is taken. Salient Features Approach – Catch all approach. This approach takes into account the following factors when determining of a Duty exists: Reasonable Foreseeability o The reasonable person must have foreseen a real, rather than fanciful or far-fetched, possibility of injury. - Sulivan v Moody 1 o However, the precise chain of events leading to P’s injury does not have to be foreseeable - Chapman v Hearse Proximity Arguments Features of past cases o Illegality o Floodgates arguments o Conflict of Duties General policy considerations. The court in Moody held that both principle and policy should be taken into account when establishing a duty, although some concern was raised about policy affecting the rights of plaintiffs. 1 Father suspected of sexually abusing his children. Doctors, psychologists etc produced a report which indicated that the children may have been abused. Father sued the practitioners in negligence saying that they had caused him psychiatric disorder. 2
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Historical development of the D.o.C In Jaensch v Coffey 1984 , Dean J noted that the common law negligence was first expounded in the case of Donoghue v Stevenson . 2 Donoghue v Stevenson 3 Established negligence as a separate tort. Established that the P must show that the D owed a DoC. Set out some guidelines as to the establishment of new DoC situations. Established the need for reasonable foreseeability. 2 Torts Cases and Commentary Luntz and Hambley 5 th ed pp.129 3 FACTS: P bought a ginger beer with a partially decomposed snail in it. P suffered gastroenteritis and psychiatric disorder. 3
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Reasonable Foreseeability (“RF”) Reasonable Foreseeability today: The reasonable person must have foreseen a real, rather than fanciful or far-fetched, possibility of injury However, the precise chain of events leading to P’s injury does not have to be foreseeable Historical Development and Cases 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. 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 act” Catersons v Commissioner for Taxation 4 - Reduction of the standard of foreseeability to “not unlikely”.
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