Sued for negligence d said did not owe a duty of care

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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 beneficiary. Reasonably foreseeable. HC held : A duty of care was owed. 3:5 refer to proximity. Brennan doesn’t use it. Gummow : does not dismiss it totally, justifies why he finds there is a duty of care. Doesn’t find the term very helpful. Judges making statements expressing disapproval of proximity. Duty of care that damage could be caused to beneficiaries, people who are affected by the will. Will there be floodgates open here? No, limited group of only people who come under the will. Solicitor legally bound to the testator (person who made the will) to perform taking reasonable duty. Dawson and Toohey : Reasonable foreseeability is not enough. Foreseeing harm is not enough. Need something more, proximity. Calling it different things but still proximity. Policy sets the limits. Courts sliding towards not using it. Sullivan v Moody (2001): (2 cases held together, cases very similar) Sullivan, P, was a father of a child. The child had made comments to her mother that indicated that she had been physically/sexually abused by father. The parents got divorced and in the proceedings the mother used the allegations as evidence. The father denied it all. The mother and child moved out of the house and he was not allowed to see his child anymore. The father had no contact with doctors or anyone else in the situation but he said they owed him a duty of care. As a result of the allegations he suffered mental harm and financial loss and sued because they hadn’t used reasonable duty of care in their investigations. Was a duty of care owed? 5 judges gave a joint judgment. Past case with similar facts of the Supreme court of SA- decided no duty of care based on proximity. High Court held: P argues that it was reasonable foreseeable that harm could be caused due to investigation of these sorts of claims in this sort of circumstance. D reasonable foresaw that people could be hurt. P was a parent of child and therefore satisfies second test. Held : No duty of care owed. Reasonable foreseeability is not the only part of the test (it is only the first part) because two terrible consequences would arise if it were: 1. Burden of potential liability. 2. Law of negligence would subvert other laws if they made it too easy. Novel cases, there is an important second step. Look at England- what’s fair, just and reasonable- Approach taken in Caparo v Dickman - 'Caparo' test 1. Foreseeability of damage 2. A relationship characterised by the law as one of proximity or neighborhood; and, 3. That the situation should be one in which the court considers it would be fair just and reasonable that the law should impose a duty of given scope on one party for the benefit of the other- the High Court doesn’t like that approach as it gives judges too much leeway about what’s just. Gives judges too must individual discretion. Preferring use of principles for that reason to judge all judges. Try to make a difference between principle and policy. Involves judges analyzing the principles relevant to the case. In this
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