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Issue

Write about the Principles of Tort Law for Civil Liability Act.

The key issue in this case revolves around the possibility of a claim of negligence being made against Dr Stark, on the basis of Civil Liability Act 2002, by the Nguyens.

Negligence is amongst the different torts which are applicable in Australia. In a case of negligence, a breach of duty of care takes place, which leads to the second part being harmed or having to face a loss or injured[1]. For establishing the presence of negligence in a particular case, there is a need to show the presence of certain elements which include the duty of care, its breach, resulting damages, foreseeability of loss, proximity between parties, direct causation and the losses not being too remote[2]. This requirement is given under the common law. The similar provisions are covered under the Civil Liability Act, 2002[3]. Section 5B of the Civil Liability Act 2002 provides that a person would be held liable for negligence only when they fail to take the requisite precautions against the possible risk of harm, where such a risk of harm was reasonably foreseeable and was not significant, and that in similar circumstances, a prudent person would have undertaken these precautions[4].

In order to show that a party had been negligent, the first requirement is to show that a duty of care was owed by one party to another. Donoghue v Stevenson[5] was a case where the court held that the manufacturer owes a duty towards the consumers, as the product which they produce, is consumed by consumer. And so, it is crucial that the manufacturer prepares drinks which are safe for the consumer. The deal snail found inside the ginger beer bottle was a breach of duty of care. In considering the duty of care in this case, the court analysed the proximity between the parties, where the actions of one party had the possibility of harming another[6].

Section 5B of the Civil Liability Act 2002 provides that a duty of care would be breached when the probability of the occurrence of such harm was not undertaken properly, along with the seriousness of harm. Further, there was also a failure in considering the burden of taking the requisite precautions for avoiding the harm and the social utility of the undertaken activity[7].

The second step is to show that the duty of care which had been owed by the defendant was contravened. And the third step is to show that this caused a serious harm to the plaintiff[8]. Paris v Stepney Borough Council[9] was a case where the court held that the defendant had to provide the safety gear to the plaintiff, which they failed to do. This was a breach of duty of care on part of the defendant. Further, as the plaintiff loss his only good eye, ultimately making him blind, the court had that the injury was substantial and this led to the court ordering the defendant to compensate the plaintiff for their injury. The injury has to be a direct result of the breach of duty of care, which was clearly established here. This clarifies that if the damages are too remote, the plaintiff would not be compensated, as was seen in Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd[10].

Rule

One of the requirements for negligence is that harm or loss was foreseeable in a reasonable manner[11]. In this regard, the statement made by the judges in case of Wyong Shire Council v Shirt[12] proves to be of help. The judges stated that harm would be reasonably foreseeable when a reasonable person would perceive as being foreseeable. The parties need to be in proximity, so that the actions of one can affect the other. Perre v Apand[13]  was one of such cases where the proximity led to the land of plaintiff being infected and his claims being upheld. Once, all of the requirements covered here are fulfilled, a case of negligence can be successfully made and the damages be claimed[14].

Rogers v Whitaker[15] presents the standard of care for the professionals. In this case, the respondent was nearly blind in one eye since she was 9 year old. At 47, during her routine eye check-up, she was referred for a possible surgery to the appellant. It was claimed by the appellant that by operating on her good eye, the scar tissue could be removed, which could prevent glaucoma. After the operation, her eye did not improve, and in the eye which was nearly blind, loss the sight completely. The appellant had failed to advice the respondent of this risk and the question was brought before the court regarding the failure to inform the patient was a breach of duty of care or not. The court held that this was a clear breach of duty of care as the patient could not an educated decision of going forward with the surgery or not. The standard of care of a skilled person could not be compared to an ordinarily skilled person and thus required care on their part. 

The facts of the case study match the case of Cattanach v Melchior[16], where the mother went with a sterilization procedure which failed and as a result, a healthy child was born. The court held that the doctor was negligent was required to compensate the mother for the cost of raising, as well as, maintaining a healthy child. 

In the given case study, the Nguyens were the patient of Dr. Stark and this put the doctor in a position, where apart from their duty as a doctor in general, the proximity between the parties led to a duty of care being owed by the doctor to the family. On the basis of Donoghue v Stevenson, Dr. Stark would owe a duty of care to the Nguyens. Based on this duty, it was a duty of the doctor to inform the family about the recanalization possibility, so that an informed decision could be made. The next step is establishing that there was a breach of this duty of care. The facts of the case clearly highlight that Dr Stark carried out the operation without telling them of the possibility of recanalization. This was a clear breach of duty of care on the basis of Rogers v Whitaker as due to this lack of information, the Nguyens could not make an informed decision. Applying Paris v Stepney Borough Council, the harm was significant in the case as the new born child was to have Down syndrome due to the child being conceived at such a late stage, where the possibility of this disease was high. The proximity is already established, due to the presence of patient doctor relationship between the two, where the acts of one, affected another, on the basis of Perre v Apand.

Application

The most important aspect is the reasonable foreseeability in this case, which is a substantial clause under both the common and statutory law. Section 5B of the Civil Liability Act 2002 requires that for holding Dr. Stark liable, it has to be shown that they filed to take the required precaution, where the risk was reasonably foreseeable and a prudent doctor in Dr. Stark’s position would have taken these precautions. Wyong Shire Council v Shirt requires the view of a prudent person to be taken in this regard. A reasonable doctor would have, based on the ruling given in Rogers v Whitaker, informed the Nguyens about the possibility of recanalization, however remote that may be. A chance is a chance and this information was required to make the informed decision.

Further, on the basis of Section 5B, the probability of the occurrence of such harm, along with the seriousness of harm, was not undertaken properly by the Doctor. It was clearly foreseeable that a child born to a woman who passes the age of 35 has chances of Down syndrome for the children, along with possible birth complications. And Mrs Nguyen had already agreed to it.

Mrs. Nguyens getting pregnant thus was the negligence of Dr. Stark. And on the basis of Cattanach v Melchior, Dr. Stark would have to compensate the mother for the cost of raising, as well as, maintaining a healthy child. Further, this case involved a child with Down syndrome, which was different from the quoted case, as a healthy child was born in that case. So, the Nguyens can also claim for the medical costs of the child and for the mental stress which they had to undergo due to this negligence of the doctor.

Conclusion

This discussion makes it very clear that there is a high possibility of a successful claim of negligence being made against Dr Stark, on the basis of Civil Liability Act (NSW) 2002, by the Nguyens. And instead of precluding the claims, the act would permit the case of negligence to be made against Dr. Stark.

The key issue in this case revolves around the possibility of a claim of negligence being made against Dr Stark, on the basis of Civil Liability Act (NSW) 2002, by the new child.

An unborn child gets the right to sue the negligent party, upon being born. Watt v Rama[17] is the first Australian case where the possibility of a child suing for the injuries sustained by them was considered, whilst the child was in the mother’s womb, due to the negligence of the defendant. The main question in this case was whether or not the defendant driver owed a duty of care towards the plaintiff. The court held that the defendant indeed owed a duty of care towards the child, in the equal manner as the mother. As a result of the defendant’s negligence, he was ordered to compensate the plaintiff for the disability suffered by him due to the fault of the defendant. Similarly, in Lynch v Lynch[18] was a case where the daughter was allowed to sue her own mother for negligence driving, which led to the daughter being born with cerebral palsy. Though, in X & Y v Pal[19], the child was not allowed to recover the damages as the disabilities which he had, did not occur due to syphilis, where the defendant had been negligible.

It has already been established in the previous segment of this discussion that Dr. Stark had been negligent when she failed to inform the Nguyens about the possibility of re-canalisation. Due to the actions of Dr. Stark, the new born child in question here was born with Down syndrome. Applying the case of Watt v Rama and Lynch v Lynch, for the negligence of the party, which injures the child in the womb, a claim can be made by the child when he/ she is born, for the loss sustained by them on the basis of the negligence of the defendant. And unlike in X & Y v Pal, the disability was a direct result of the negligence of Dr. Stark. This is because if the Nguyens had known of the possibility of conceiving even after getting sterilized, they would have taken precautions to avoid the chances of getting pregnant. As this choice was not available to the Nguyens, the new child was born and so, a direct causation is present here. So, these cases make the chances of a claim being made by the new born child against Dr. Stark. And the new child would be able to claim damages for their physical condition from Dr. Stark.

Conclusion

This discussion makes it very clear that there is a high possibility of a successful claim of negligence being made against Dr. Stark, on the basis of the doctor’s negligence, by the new child.

Abbott K, Pendlebury N, and Wardman K, Business law (Thompson Learning, 8th ed, 2007)

Latimer P, Australian Business Law 2012 (CCH Australia Limited, 31st ed, 2012)

Lunney M, and Oliphant K, Tort Law: Text and Materials (Oxford University Press, 5th ed, 2013)

Steele J, Tort Law: Text, Cases, and Materials (Oxford University Press, 3rd ed, 2014)

Stewart P, and Stuhmcke A, Australian Principles of Tort Law (Federation Press, 2009)

Turner C, Unlocking Torts (Routledge, 3rd ed, 2013)

Cattanach v Melchior [2003] HCA 38

Donoghue v Stevenson [1932] AC 562

Lynch v Lynch (1991) 25 N.S.W.L.R. 411

Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd [1961] UKPC 2

Paris v Stepney Borough Council [1951] AC 367

Perre v Apand (1999) 198 CLR 180

Rogers v Whitaker (1992) 175 CLR 479

Watt v Rama [1972] VicRp 40

Wyong Shire Council v Shirt (1980) 146 CLR 40

X & Y v Pal (1991) 23 NSWLR 26

Civil Liability Act, 2002 (NSW)

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