Reasonable foreseeability of loss is commonly but not

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Reasonable foreseeability of loss is commonly (but not always) an adequate indication that the requirements of proximity are satisfied ( Sutherland Shire Council v Heyman) Re other cases To decide whether there is relevant proximity look for one or more: a. Physical proximity (nearness in space and time) b. Circumstantial proximity (eg particular relationship like employer/employee) c. Causal proximity (directness between particular act and the injury) d. Maybe value judgments on matters of policy and degree ( Gala v Preston ) o Salient features/ principles/ policies used in any case- analysis of the principles relevant in the case o Seems DOC depends on finding sufficient number of factors (called salient features by Gummow J in Perre ) indicating why it is proper to impose DOC in a particular case o But no clear one way of stating ‘test’ for this second part o re ‘policies’ the HCt in Moody said they wanted things capable of general application rather than discretionary policy making – so seems prefer word ‘principles’ to ‘policies’ Look at: Features considered relevant in past cases; and Anything else salient in the present case. o Eg - these things include: Relationship between the parties Creation conflicting duties – see eg Hill (make sure solicitors act carefully, if they owed a DOC), Moody (inconsistent obligations causing conflict for the D) Exposure of def to indeterminate liability – eg see Hill Vulnerability of the plf to def’s carelessness- eg Perre, Tame and Hill Control by def – e.g. Perre Assumption of responsibility – e.g. Bryan Reliance by plaintiff on def Need for coherency in law (whether another area better suited) – see e.g. Moody Torts Lecture Notes 7
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Reluctance to interfere with def’s legitimate economic activity – see e.g. Tame, Moody, Perre List may need changes/ additions when we have looked at particular duty situations (e.g. Where plaintiff suffers mental injury only) Torts Lecture Notes 8
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2. BREACH OF DUTY P has to prove the d breached the duty to take reasonable care. Negligence is a fault liability tort. To work out reasonable care need to decide what the standard of care it. The task of determining whether a duty of care has been breached involves a comparison of the defendant’s conduct with the ‘standard of care’ required by the duty. Whenever the defendant’s conduct falls below the required standard of care, the duty is seen to be breached. Conversely, when the defendant’s conduct meets or exceeds the standard imposed by law, no liability arises under the tort of negligence, irrespective of the existence of harm caused to the plaintiff. Thus, in deciding whether a duty of care has been breached, it is first necessary to ascertain the content of the duty (assuming, of course, the existence of a duty of care has already been established: see Section 1 above).
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