经济法 国外

General Negligence

Issue: Does Charles owe a duty of care to his neighbor?

1: 非建议类：

Law：

(a) Foreseeability test: An objective test measuring if a reasonable person would have foreseen that harm may result from defendant‟s actions (Hay v Young, Chapman v Hearse).

(b) Proximity test: Plaintiff must be in a sufficiently proximate relationship with the defendant (Jaensch v Coffey）There are 3 types of proximity: 1. Physical- closeness; 2. Circumstantial- employer to employee; 3.Causal- temporary.

2：建议类：

Law：

MLCV Evatt（three step tests）

(1): the advice or information was given in respect of a serious or business matter

(2): The circumstance were such that D did or should have realized that P intended to act on the information or advice (assumption of responsibility) (3): in the circumstances, it was reasonable for P to have relied on the information or advice (reasonable reliance)

(4): Some reasonable reliance factors considered by the court include:

1. The context in which the advice or information was given (Mohr CleaverTepko v Water Board)

2. Presence or absence of special skill(Hedley Byrne V Heller &Partners)

3. Length of relationship between parties

4. Request for information /advice (Shaddock &Associates V Parramatta City Council)

5. Alternative sources of information /advice (shaddock0

6. Direct recipient（接受者）of information /advice (Esanda Finance)

Application：

D owes P a duty of care to ______because:

(a): There was a special relationship between D and P because (P was a long term customer of D).

(b): serious nature (money)

(c): D should know that P was going to rely on D's advices because P is D‟s client.

(d): It was reasonable for P to rely on the advice.

(1): D provided the advice in a business context-the advice was given of

charge.

(2): D has special skill in providing the advice ( have licenses and

accreditation鉴定合格）

(3): (Bill and Mark have a longstanding relationship built on trust and as

such the fact that there are alternative sources of seeking investment advice is irrelevant)

(4)?

(5) If D is the only source of the information, more likely that the Court

will find reasonable reliance.

Conclusion:

Issue: Has Mark breached the duty of care?

Law:

(a): was the risk of harm foreseeable?(section 9(1)(a) civil liability act 2003) D knew or ought to have known(i.e. on an objective test) the risk of harm to P (b): was the risk not insignificant? (Section 9(1) (b) (Wyong Shire council V Shirt)

(c): would a reasonable person in the position of D have taken the precautions against the risk of harm?(Section 9(1) (c))Court considers these factors when applying precautions test:

(1) The probability of harm care were not taken (section 9(2) (b))

Lower probability=reasonable person less likely to precautions(Boulton v