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