Not reasonably foreseeable that someone in her

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Not reasonably foreseeable that someone in her situation would be hurt Chester v Waverley Municipal Council (1939) (Mother saw son dead in trench) FACTS: Council dug trench and left it. It filled with water. Boy fell in and drowned. Mother suffered mental harm from see them pull the boy out of the trench. HELD: no DOC. Not reasonably foreseeable that the mother would suffer injury. NB: Would probably go the other way not – Evitt J: Reasonably foreseeable that those around the scene could suffer mental harm from seeing an injury and it is likely that those in this group (mother) would be particularly susceptible. Levi v Colgate-Palmolive Pty Ltd (1941) (Bath Salts) FACTS: P given free bath salts that caused a very bad rash. She had very bad skin and up until the reaction nobody knew a reaction could be caused. D admitted owing a duty of care but only to customers with normal skin condition. Haley v London Electricity Board (1965) (Blind person fell in street hole) FACTS: Electricity board made hole in footpath and left it overnight with a sign and diagonal stick. Plaintiff was blind and used the cane – missed the stick fell into the hole and lost hearing. Issue: Does P fall into the right class? Road user? Blind road user???? HELD: DOC – they didn’t take sufficient caution, blind people fall into class.
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SALIENT FEATURES SUMMARY ( Sullivan v Moody instead of proximity) - Relationship between the parties: The closer the relationship the more likely to be a duty. - Floogates : will the decision open floodgates to litigation ( Moody ) - Illegal activity : courts are less likely to find a DOC if the plaintiff was engaging in an illegal activity/can’t treat criminal as a reasonable person. ( Gala v Preston ) - Assumption of responsibility by the defendant : Did the plaintiff rely on the defendant’s assumption of responsibility? ( Bryan facts?) - Creating conflicting duties: ( Hill, Moody ) If an unavoidable conflict of interest arises there may not be a DOC - Exposure of defendant to indetermate liability : if the number of possible plaintiffs is unquantifiable there may not be a duty - Vulnerability of the plaintiff to the defendant’s carelessness : ( Perre, Tame and Hill ) If the plaintiff has no control over the situation they are vulnerable – can use this in many cases. - Coherency in law/other better suited: ( Moody ) e.g. criminal law better suited to criminals. - Reluctance to interfere with defendant’s legitimate economic activity : ( Tame, Moody, Perre ) - Proximity : only in very few cases that are analogous to old ones courts will consider proximity (Deane J in Heyman’s Case ). a. Physical proximity (nearness in space and time b. Circumstantial proximity (like employer or employee) c. Causal proximity (directness between particular act and the injury) d. May be policy judgements on matters of policy and degree SALIENT FEATURES AND PROXIMITY CASES Gala v Preston (1991) (Policy precludes proximity) (QLD after 40 scotches) FACTS: 4 men went to the pub and drank a shite load. They stole a car and started driving to QLD. The driver fell asleep killed one passenger and injured the other.
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