Professional Documents
Culture Documents
A foetus has no right under the law until authorities to take positive steps for prisoners safety
it is born and has a separate existence to THE TYPE OF HARM Howard v Jarvis
it’s mother Duty of Affirmative Action
o May owe a duty to a plt en No general duty to rescue, although there may be
ventre sa mere Watt v Rama exceptions…
o Doctor’s Hippocratic Oath imposed a duty
Control and Supervision
An action may lie against a mother in arising from the proximity Lowns v Woods
Duty of Protection
respect to injuries caused to the plaintiff Duty to Control Others
whilst in the womb as a result of Teacher and Pupil relationships – teachers owe a duty to There is no general duty on one person to control the
negligent driving. Lynch v Lynch take positive action for student’s safety – this may extend actions of another to prevent him/her causing injury to
to outside school hours Geyer v Downs other people.
Basis that how can you distinguish There may, however, be cases where the relationship
between a 2 yo & unborn Bowditch v Parent and child relationship – does not of itself give rise between the Def and third party is such that the Def
McEwan to duty in parent to protect child from harm.(ie child owes a duty to control the third person’s actions.
o Will not extend beyond driving generally cannot sue parent) Robertson v Swincer Parent – child
at the moment. o Barwick CJ: The moral obligation by blood does Parents are not generally liable for the wrongful acts of
not translate into a legal obligation their child.
Also consider malnutrition, drug use, Where immediate physical care and control exists,
Omissions Generally
drinking, smoking responsibility for negligence will arise in the exercise of
Where question concerns liability for omissions something that control – including failure to exercise control.
Negligence starts at date of damage, not more than reasonable foreseeability is required. Need a
Smith v Lewis; Curmi v McLennan
accident, and therefore here the damage special relationship. Deane J: Sutherland SC v Heyman
Prison Authorities
materializes at date of birth
Whilst there is a moral obligation there is not legal No liability for criminal conduct of escaped prisoner –
due to lack of control, time and distance from the
May extend to a child conceived after obligation because no one would ever if there was such a
escape. State of NSW v Godfrey cf Dorset Yacht Co Ltd
the negligent act X v Pal high risk of liability Le Lievre v Gould
v Home Office
o Didn’t tell her to get a check, if Occupiers duty to control others on premises
Two cases where the law will impose a duty upon an
omission to act Occupier of land owes duty of care to those lawfully on
Wrongful birth property
o Special relationship between Plt and Def, so that
Allegate that but for the Def’s o Safeway Stores v Zaluzna
Def is required to take steps to protect Plt.
negligence an existing pregnancy would Difficulties still arise in determining the scope of the
o Special relationship between Def and third party,
have been terminated. Vievers v duty.
Connelly o Usually liability place if they could have taken
o Damages to raise child, Wrongful Life reasonable steps to prevent the harm
possibly psychological Actions brought by the children of wrongful births -– for Beardmore v Franklins P/L per McPherson J
damages for the negligence which led to their birth. No o Will not extend to criminal behaviour Modbury
Damages may be awarded where a successful actions in Australia because of policy grounds Triangle v Anzil per Gleeson J
healthy child is born where conception o It’s a problem because you start putting a value Liability to control 3rd party criminal Acts
occurs as a result of the def’s negligence on life No duty owed to guest in motel assaulted during the
Cattanach v Melchior o Damages put you back in a position you would night by unknown assailant
have been, how can you create no life o Ashrafi Persian Trading Co Pty Ltd v
Damages under the CLA o How can you measure non existence against
Ashrafinia (2002) Aust Torts Reps 81-636
No damages may be awarded for existence?
o Kirby says it can just be sorted out with wrongful Duty to club owners who were aware of an aggressive
economic loss of ordinarily rearing and
birth costs. member because they had control Club Italia (Geelong)
maintaining a child, where a failed
Waller v James; Waller v Hoolahan; Harriton v Stephens Inc v Ritchie
sterilisation or contraceptive procedure
Argue may impose unacceptable burden and shifting of