TORT LAW 9 Principles of Tort Law Major Assignment Question 2

This assignment analyzes a tort law case involving a potential negligence claim against Dr. Stark by the Nguyens, focusing on the principles of negligence under the Civil Liability Act 2002. The analysis examines the key issue of whether Dr. Stark breached a duty of care by failing to inform the Nguyens about the possibility of recanalization after a sterilization procedure, leading to the birth of a child with Down syndrome. The assignment discusses the elements of negligence, including duty of care, breach, causation, and damages, referencing relevant case law such as Donoghue v Stevenson, Rogers v Whitaker, and Cattanach v Melchior. Part A focuses on the parents' claim, while Part B explores the potential claim by the child. The conclusion suggests a high probability of successful negligence claims by both the Nguyens and the child against Dr. Stark, based on the doctor's failure to provide adequate information and the resulting harm.

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Contents
Part A...............................................................................................................................................3
Issue.............................................................................................................................................3
Rule..............................................................................................................................................3
Application..................................................................................................................................6
Conclusion...................................................................................................................................7
Part B...............................................................................................................................................8
Issue.............................................................................................................................................8
Rule..............................................................................................................................................8
Application..................................................................................................................................8
Conclusion...................................................................................................................................9
Bibliography..................................................................................................................................10
A. Articles/ Books/ Reports.....................................................................................................10
B. Cases...................................................................................................................................10
C. Legislations.........................................................................................................................11

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Part A
Issue
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.
Rule
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 injured1. 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 remote2. This requirement is given under the common law. The similar
provisions are covered under the Civil Liability Act, 20023. 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 precautions4.
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 Stevenson5 was a case where the
1 Keith Abbott, Norman Pendlebury and Kevin Wardman, Business law (Thompson Learning, 8th ed, 2007)
2 Mark Lunney and Ken Oliphant, Tort Law: Text and Materials (Oxford University Press, 5th ed, 2013)
3 Civil Liability Act, 2002 (NSW)
4 Civil Liability Act 2002, s5B
5 [1932] AC 562

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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 another6.
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 activity7.
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 plaintiff8.
Paris v Stepney Borough Council9 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 Ltd10.
6 Paul Latimer, Australian Business Law 2012 (CCH Australia Limited, 31st ed, 2012)
7 Civil Liability Act 2002, s5B
8 Pamela Stewart and Anita Stuhmcke, Australian Principles of Tort Law (Federation Press, 2009)
9 [1951] AC 367
10 [1961] UKPC 2

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One of the requirements for negligence is that harm or loss was foreseeable in a
reasonable manner11. In this regard, the statement made by the judges in case of Wyong Shire
Council v Shirt12 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 Apand13 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 claimed14.
Rogers v Whitaker15 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.
11 Chris Turner, Unlocking Torts (Routledge, 3rd ed, 2013)
12 (1980) 146 CLR 40
13 (1999) 198 CLR 180
14 Jenny Steele, Tort Law: Text, Cases, and Materials (Oxford University Press, 3rd ed, 2014)
15 (1992) 175 CLR 479

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The facts of the case study match the case of Cattanach v Melchior16, 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.
Application
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.
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
16 [2003] HCA 38

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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.

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Part B
Issue
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.
Rule
An unborn child gets the right to sue the negligent party, upon being born. Watt v Rama17
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 Lynch18 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 Pal19, 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.
Application
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-
17 [1972] VicRp 40
18 (1991) 25 N.S.W.L.R. 411
19 (1991) 23 NSWLR 26

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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.

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Bibliography
A. Articles/ Books/ Reports
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)
B. Cases
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

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Watt v Rama [1972] VicRp 40
Wyong Shire Council v Shirt (1980) 146 CLR 40
X & Y v Pal (1991) 23 NSWLR 26
C. Legislations
Civil Liability Act, 2002 (NSW)