Douglas Gibson Andy Fraser Business Law

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Douglas Gibson Andy Fraser Business Law

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There are a number of torts in Australia, which are applied on the daily lives of the people. However, the most prominent one in this regard is the tort of negligence. Where a case of negligence is shown by the aggrieved party, they are able to make a claim of negligence in the court and are awarded damages[1]. In order to show that a case of negligence was present, the aggrieved party has to show that certain components were present. These are the duty of care being owed towards them, the duty of care being contravened/ violated, the same resulting in injury/ loss/ harm, the loss being reasonably foreseeable, the remoteness of losses, the proximity between parties, and lastly, the direct causation component[2]. Apart from these requirements, which have been given under the common law, the statutory law also provides the provisions with regards to negligence and this have been stated under the Civil Liability Act, 2002[3], which is applicable in the jurisdiction of New South Wales.
Under section 5B(1) of this act, it has been stated that an individual can be held accountable for the undertaken negligence in such a case where there has been no failure in undertaking the required precautions against the particular risk of loss or injury, followed by the risk of such loss being foreseeable in a reasonable manner and the same significant in such a way that a reasonable person would have applied certain precautions to safeguard from its occurrence[4]. Under section 5B(2) of this act, the duty of care is deemed to be contravened when there is a chance of the harm or the loss taking place and the same is not considered properly, and this harm or loss is serious in nature. In addition to this, there has to be a failure in taking into consideration, the burden of applying the needful precautions or safeguards so as to avoid the harm and the social utility of the activity which was undertaken[5].

For establishing a case of negligence, the very first step is to demonstrate the presence of duty of care by one individual to the other individual. In this regard, the case of Donoghue v Stevenson[6] proves to be of assistance. In this case, a dead snail was found to be present inside the ginger beer bottle, which was manufactured by the defendant of this case. The defendant denied that they owed a duty of care towards the consumer as the consumer had bought the bottle in a cafe. The contamination of the bottle made the plaintiff sick and the court agreed with her claim that the defendant had breached their duty of care in this case. The raison d’être for holding that a duty of care was present for the defendant was given to be the relationship between the manufacturer and the consumer, and the foreseeability of such injury in a rational manner[7].
Next comes establishing that an obligation of care was contravened which resulted in a significant loss or harm to the plaintiff[8]. In the case of Paris v Stepney Borough Council[9], this was established successfully. In this case, the defendant had employed the plaintiff for a certain work, which required him to be provided with safety equipments. But this was not done and the plaintiff got blinded as a rusty bolt flew into his eye after getting loose. The plaintiff sued the defendant for breaching their duty of care and the court upheld the claim as the shortfall on part of the defendant in providing the needful equipments was seen as a contravention of the obligation of care. The blindness was a significant injury, which led to the damages being awarded to the plaintiff. In the Wagon Mound case, fully known as Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd[10] the damages were not awarded because of the remoteness of damages. So, the damages cannot be remote and have to be substantial in nature for a claim of negligence to succeed[11].

Another component of making a claim of negligence is the injury to be foreseeable in a manner which can be deemed as foreseeable. For deciding if a particular loss or harm is reasonably foreseeable or not, the view of an unbiased prudent person has to be taken and this requirement was given in the legal matter of Wyong Shire Council v Shirt[12]. Another requirement is for the parties to have proximity between them in such a manner that the actions undertaken by one party can impact the other party. In the case of Perre v Apand[13] due to the proximity, the plaintiff’s farmland was inflected and the court stated that the defendant had to compensate the plaintiff for their loss. Upon the requirements stated here being completed, the court of law establishes the presence of negligence and awards the damages cited by the plaintiff[14].
A standard of care is also set for professionals, which was given in the landmark case of Rogers v Whitaker[15]. In this particular instance, the respondent had been almost blinded, since she was only nine, in her one eye. When she attained the age of forty seven, she went for a routine-based check up and there she was referred for a surgery, and this referral suggested her to go to the appellant. The appellant stated that by going forward with this operation, on her working eye, it would be prevented from a possibility of glaucoma as the scar tissue would be removed from her good eye. Once the operation was undertaken, the condition of her eye did not improve in her good eye, and her almost blind eye got completely blinded. It was discovered later on that the respondent had not been made aware of the risks of this operation by the appellant and so, a query was raised in the court with regards to the appellant’s failure in informing the patient about the risks, as a breach of their duty of care. In the view of the court, this action of the appellant was a clear violation of the obligation of care since the court believed that the respondent was not made aware about the risks, which could have allowed the appellant in making an educated decision, where they could or could not have continued with the operation. The reason for holding the appellant liable was the difference in the standard of care for a skilled person from an ordinary person[16].
The case study for which the analysis is being conducted has similar facts to the case of Cattanach v Melchior[17] in which the mother underwent sterilization process with the doctor. And yet, she conceived and gave birth to a healthy child. In this case, the court upheld the plea of the mother and held the doctor negligent, whereby he was asked to give monetary compensation to the mother, which was equal to an amount for the cost of raising and maintaining a healthy baby.
The given case study highlights that Nguyens were the patient of Dr. Stark and this developed a relationship of patient and doctor between the two. This relationship shows that there was proximity between Nguyens and Dr. Stark, where the actions of the doctor could impact Nguyens easily. Applying the case of Donoghue v Stevenson, the doctor would be considered to owe a duty of care towards Nguyens as any shortfall in fulfilling their work, could injure Nguyens. As a duty of care was present, the doctor was under an obligation to inform Nguyens that the procedure being undertaken had the chances of recanalization, which could get Nguyens pregnant even after sterilization. There is a need to show that the duty was breached and this is present in the doctor not informing the Nguyens that this procedure could result in recanalization. This breach of duty is present as a result of the applicability of Rogers v Whitaker, where the doctor owed a higher standard of care as a result of being a professional. And the absence of this information shows that the Nguyens were not able to make an informed decision.

The breach of duty of care can also be established through the case of Paris v Stepney Borough Council, as the loss in this case would be considered as a major one owing to the fact that the new born baby had Down syndrome possibility, due to being conceived at a very late stage and with age, this possibility of disease was raised. Further, also on the basis of Perre v Apand, the proximity between a patient and their doctor would make Dr. Stark liable towards Nguyens.
Reasonable foreseeability is a key requirement as per the rules stated above, under the statutory and common law. For making Dr. Stark accountable under negligence, section 5B requires to establish that the doctor had failed in undertaking the required care and a rationale doctor would have used these safeguards. For this, the view of a reasonable individual has to be considered as per Wyong Shire Council v Shirt. Since the ruling of Rogers v Whitaker, doctors have become more proactive and are required to inform the patients of all possible outcomes. As Dr. Stark did not do so, he failed to undertake what was reasonable foreseeable and this would again make him liable as the Nguyens lost their opportunity of making an informed decision due to lack of relevant information.
As the negligence of Dr. Stark has already been established, the applicability of the verdict of Cattanach v Melchior would make the doctor liable to pay the cost of raising and maintaining the child. And as the child suffered from Down syndrome, the doctor would also have to pay the medical costs of the child, along with for the mental distress caused to the Nguyens.
To sum up the discussion carried here, the applicability of the common law and the statutory law makes Dr. Stark responsible for negligence and as a result of this, he would have to bear the costs of the child’s raising, medical costs, maintenance, and for the mental distress caused to the Nguyens.
Whether the new born baby can make a claim against Dr. Stark on the basis of the Civil Liability Act, or not?
Through different case laws, it has been established that the unborn child, upon being born, has the right to sue the negligent party. This was established through the case of Watt v Rama[18] where the defendant, who was the driver, was made liable for the injuries which the child sustained in his mother’s womb and was ordered to compensate the child for the disability he suffered. Lynch v Lynch[19] saw the mother being held liable for negligence by a case made by her daughter, upon being born, as she got cerebral palsy as a result of mother’s fault.

In the case study, it is very clear that Dr. Stark had been negligent as he failed to inform the Nguyens about recanalization being a possibility, which could have allowed them to make a proper decision. As a result of this, the child was born with a condition called Down syndrome. Applying the cases of Watt v Rama and Lynch v Lynch, the new born baby are allowed to make a case of negligence against the negligent party. Due to the applicability of these cases, the new born baby of the case study can successfully sue Dr. Stark and can claim relevant remedies, in form of monetary compensation for the disease and also for the lifetime emotional distress caused due to the actions undertaken by the doctor.
To sum up this discussion, the new born baby would be successful in making a case of negligence against Dr. Stark for negligence, on the basis of established case laws.

References
Abbott K, Pendlebury N, and Wardman K, Business law (Thompson Learning, 8th ed, 2007)
Andy Gibson and ‎Douglas Fraser, Business Law (Pearson Higher Education AU, 2013)
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 18
[1] Mark Lunney and ‎Ken Oliphant, Tort Law: Text and Materials (Oxford University Press, 5th ed, 2013)
[2] Keith Abbott, ‎Norman Pendlebury and Kevin Wardman, Business law (Thompson Learning, 8th ed, 2007)
[3] Civil Liability Act, 2002 (NSW)
[4] Civil Liability Act 2002, s5B(1)
[5] Civil Liability Act 2002, s5B(2)
[6] [1932] AC 562
[7] Paul Latimer, Australian Business Law 2012 (CCH Australia Limited, 31st ed, 2012)
[8] Andy Gibson and ‎Douglas Fraser, Business Law (Pearson Higher Education AU, 2013)
[9] [1951] AC 367
[10] [1961] UKPC 2
[11] Pamela Stewart and Anita Stuhmcke, Australian Principles of Tort Law (Federation Press, 2009)
[12] (1980) 146 CLR 40
[13] (1999) 198 CLR 180
[14] Chris Turner, Unlocking Torts (Routledge, 3rd ed, 2013)
[15] (1992) 175 CLR 479
[16] Jenny Steele, Tort Law: Text, Cases, and Materials (Oxford University Press, 3rd ed, 2014)
[17] [2003] HCA 38
[18] [1972] VicRp 40
[19] (1991) 25 N.S.W.L.R. 411

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